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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT


_______________________________________________________

APPEAL NO. 17-11888


APPEAL NO. 17-12134
APPEAL NO. 17-12376
_________________________________________________________

NAUSHEEN ZAINULABEDDIN
PLAINTIFF-APPELLANT

v.

UNIVERSITY OF SOUTH FLORIDA, BOARD OF TRUSTEES


DEFENDANT-APPELLEE
_________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF FLORIDA (TAMPA DIVISON)
CASE NO. 8:16-cv-00637 (Hon. James S. Moody)
____________________________________________________

PLAINTIFF APPENDIX
VOLUME II OF XII: DOCKET 6 to 23-1 (cont.)
(Pages A-210 TO A-409)
___________________________

APPELLANT
Nausheen Zainulabeddin
4730 South Woodlawn Ave. Apt 3D
Chicago, IL 60615
nausheenkhawaja@gmail.com

Pro Se
INDEX

VOL. Tab Date Title Page


numbers
A-
I 2 1/22/16 Complaint filed in the Circuit 1-58
Court of the 13th Judicial
Circuit in and for Hillsborough
County, Florida
I 2-1 1/22/16 Dkt. 2 Exhibit A 59-64

I 2-2 1/22/16 Dkt. 2 Exhibit B 65-167


I 2-3 1/22/16 Dkt. 2 Exhibit C 168-169
I 2-4 1/22/16 Dkt. 2 Exhibit D 170-171
I 2-5 1/22/16 Dkt. 2 Exhibit E 172-175
I 2-6 1/22/16 Dkt. 2 Exhibit F 176-178
I 2-7 1/22/16 Dkt. 2 Exhibit G 179-180
I 1 3/17/16 Defendant Notice of Removal 181-186
I 1-1 3/17/16 Dkt. 1 Exhibit B: Summons 187-190
I 1-2 3/17/16 Dkt. 1 Exhibit C: Notice of 191-193
Appearance
I 1-3 3/17/16 Dkt. 1 Exhibit D: Designation 194-196
of E-mail Addresses
I 1-4 3/17/16 Dkt. 1 Exhibit F: Civil Cover 1971-198
Sheet
I 4 3/24/16 Defendant’s Motion to Dismiss 199-209
and for more Definite
Statement and Supporting
Memorandum of Law
II 6 3/30/16 Plaintiff’s Response in 210-222
Opposition to Defendant’s
Motion to Dismiss and for
more Definite statement, with

i
Incorporated Memorandum of
Law
II 6-1 3/30/16 Dkt. 6 Exhibit A 223-228
II 9 4/06/16 Case Management and 229-231
Scheduling Order
II 10 4/13/16 Order: Denial of Dkt. 4 232-240
II 11 4/27/16 Defendant’s Answer, Defenses, 241-272
and Affirmative Defenses
II 12 09/08/16 Unopposed Motion to 273-275
Withdraw and for Substitution
of Counsel
II 14 11/09/16 Order Referring Case to 276-280
Mediation and Directing
Selection of a Mediator
II 15 11/29/16 Joint Motion for Enlargement 281-284
of the Discovery and
Dispositive Motion Deadlines
II 17 12/09/16 Notice of Mediator Selection 285-286
and Scheduling of Mediation
II 18 12/13/16 Order Appointing Mediator and 287-288
Scheduling Mediation
II 19 02/01/17 Plaintiff Partially Opposed 289-294
Motion to take Deposition of
Dr. Joanne Valeriano-Mercent
Subsequent to close of
discovery with incorporated
statement of good cause
wherefore
II 19-1 02/01/17 Dkt. 19 Exhibit A: Plaintiff’s 295-297
Notice of Taking Deposition of
Dr. Joanne Valeriano-Marcet
II 20 02/02/17 Granted Order of Dkt. 19 298-299
II 21 02/03/17 Joint Motion to Extend 300-302
Mediation Deadline

ii
II 22 02/04/17 Defendant’s Motion for 303-326
Summary of Judgement
II 23 02/04/17 Defendant’s Notice of Filing 327-328
Deposition Transcripts In
Support of Its Motion for
Summary of Judgement
II & III 23-1 02/04/17 Dkt. 23 Exhibit A, Volume I: 329-448
Plaintiff’s Deposition
Transcript and Exhibits
III 23-2 02/04/17 Dkt. 23 Exhibit A, Volume II: 449-563
Plaintiff’s Deposition
Transcript and Exhibits
III & IV 23-3 02/04/17 Dkt. 23 Exhibit B Deposition 564-650
Transcript of Dr. Deborah Roth
and Exhibits
IV 23-4 02/04/17 Dkt. 23 Exhibit C: Deposition 651-737
Transcript of Dr. Ambuj Kumar
and Exhibits
IV 23-5 02/04/17 Dkt. 23 Exhibit D: Deposition 738-810
Transcript of Dr. Saundra Stock
and Exhibits
IV &V 23-6 02/04/16 Dkt. 23 Exhibit D: Additional 811-871
documents
V 25 02/09/16 Notice of Withdrawal of 872-873
Plaintiff’s Motion to Take
Deposition of Dr. Joanne
Valeriano-Mercet
V 26 02/19/17 Plaintiff’s Statement of 874-885
Disputed Material Facts
V 26-1 02/19/17 Dkt. 26 Exhibit A 886-893
V 26-2 02/19/17 Dkt. 26 Exhibit B 894-898
V 26-3 02/19/17 Dkt. 26 Exhibit C 899-907
V 27 02/19/17 Plaintiff’s Response in 908-927
Opposition to Defendant’s

iii
Motion for Summary
Judgement
V 28 02/19/17 Plaintiff’s Notice of Filing 928-929
Affidavit in Support of
Plaintiff’s Response in
Opposition to Defendant’s
Motion for Summary
Judgement
V 28-1 02/19/17 Dkt. 28 Affidavit of Plaintiff 930-956
V 28-2 02/19/17 Dkt. 28 Exhibit A, B, C, D, 957-972
V 28-3 02/19/17 Dkt. 28 Exhibit E 973-980
V 28-4 02/19/17 Dkt. 28 Exhibit F, G, H, 981-995
V 28-5 02/19/17 Dkt. 28 Exhibit I, J, K, L 996-1018
V 29 02/19/17 Plaintiff’s Notice of Filing 1019-1020
Deposition of Steven Specter in
support of Plaintiff’s Response
in Opposition to Defendant’s
Motion for Summary
Judgement
V & VI 29-1 02/19/17 Dkt. 29 Deposition of Steven 1021-1203
Specter, Ph.D
VI 29-2 02/19/17 Dkt. 29 Plaintiff’s Amended 1204-1209
Notice of Taking Deposition of
Dr. Steven Specter
VI 29-3 02/19/17 Dkt. 29 Exhibit 2 1210
VI 29-4 02/19/17 Dkt. 29 Exhibit 3 1212
VI 29-5 02/19/17 Dkt. 29 Exhibit 4 1214
VI 29-6 02/19/17 Dkt. 29 Exhibit 5 1215
VI 29-7 02/19/17 Dkt. 29 Exhibit 6 1216
VI 29-8 02/19/17 Dkt. 29 Exhibit 7 1221
VI 29-9 02/19/17 Dkt. 29 Exhibit 8 1222
VI 29-10 02/19/17 Dkt. 29 Exhibit 9 1223
VI 29-11 02/19/17 Dkt. 29 Exhibit 10 1225

iv
VI & 29-12 02/19/17 Dkt. 29 Exhibit 11 1242
VII
VII 29-13 02/19/17 Dkt. 29 Exhibit 12 1243
VII 29-14 02/19/17 Dkt. 29 Exhibit 13 1244
VII 29-15 02/19/17 Dkt. 29 Exhibit 14 1251
VII 29-16 02/19/17 Dkt. 29 Exhibit 15 1260
VII 29-17 02/19/17 Dkt. 29 Exhibit 16 1269
VII 29-18 02/19/17 Dkt. 29 Exhibit 17 1270
VII 29-19 02/19/17 Dkt. 29 Exhibit 18 1276
VII 29-20 02/19/17 Dkt. 29 Exhibit 19 1284
VII 29-21 02/19/17 Dkt. 29 Exhibit 20 1285
VII 29-22 02/19/17 Dkt. 29 Exhibit 21 1287
VII 30 02/19/17 Plaintiff’s Notice of Filing 1288
Complete Deposition
Transcript of Dr. Ambuj Kumar
in Support of Plaintiff’s
Response in Opposition to
Defendant’s Motion for
Summary of Judgement
VII 30-1 02/19/17 Dkt. 30 Deposition 1290-1362
VII 30-2 02/19/17 Dkt. 30 Exhibit 1 1363
VII 30-3 02/19/17 Dkt. 30 Exhibit 2 1364-1365
VII 30-4 02/19/17 Dkt. 30 Exhibit 3 1366-1371
VII 30-5 02/19/17 Dkt. 30 Exhibit 4 1372-1377
VII 30-6 02/19/17 Dkt. 30 Exhibit 5 1378-1396
VII 30-7 02/19/17 Dkt. 30 Exhibit 6 1397
VII 30-8 02/19/17 Dkt. 30 Exhibit 7 1399
VII 30-9 02/19/17 Dkt. 30 Exhibit 8 1401
VII 30-10 02/19/17 Dkt. 30 Exhibit 9 1402
VII 30-11 02/19/17 Dkt. 30 Exhibit 10 1403
VII 30-12 02/19/17 Dkt. 30 Exhibit 11 1405
VII 30-13 02/19/17 Dkt. 30 Exhibit 12 1406
VII 30-14 02/19/17 Dkt. 30 Exhibit 13 1407

v
VII 30-15 02/19/17 Dkt. 30 Exhibit 14 1408
VII 30-16 02/19/17 Dkt. 30 Exhibit 15 1409
VII 30-17 02/19/17 Dkt. 30 Exhibit 16 1410
VII 31 02/27/17 Joint Motion to Extend 1418
Mediation Deadline
VII 33 03/01/17 Defendant’s Motion for Leave 1421
to reply to Plaintiff’s Response
to Defendant’s Motion for
Summary Judgement
VII 35 03/07/17 Unopposed Motion to 1424
Withdraw and for Substitution
of Counsel
VII 36 03/08/17 Order Granting Dkt. 35 1427
VII 37 03/15/17 Defendant’s Reply to Plaintiff’s 1428
Response in Opposition to
Defendant’s Motion for
Summary of Judgement
VIII 38 03/18/17 Plaintiff’s Motion for Leave to 1437
File Surreply to Defendant’s
Reply Memorandum to
Plaintiff’s Response in
Opposition to Defendant’s
Motion for Summary
Judgement
VIII 40 03/22/17 Mediation Report 1440
VIII 41 03/24/17 Plaintiff’s Surreply to 1442
Defendant’s Reply
Memorandum to Plaintiff’s
Response in Opposition to
Defendant’s Motion for
Summary Judgement
VIII 41-1 03/24/17 Dkt. 41 Exhibit A 1447
VIII 41-2 03/24/17 Dkt. 41 Exhibit B 1451

vi
VIII 42 04/19/17 Order Granting Summary of 1455-1484
Judgement in Favor of
Defendant
VIII 43 04/20/17 Judgement in Civil Case signed 1485-1486
by Deputy Clerk
VIII 44 04/26/17 Plaintiff’s Notice of Appeal to 1487-1488
USCA 11th circuit for Dkt. 42
VIII 46 04/27/17 Transfer of Appeal to USCA 1489-1552
11th Circuit (Dkt. 44).
VIII 47 04/27/17 Application for Leave to 1553-1555
Withdraw as Counsel
VIII 48 05/01/17 Motion for Reconsideration 1556-1581
VIII 48-1 05/01/17 Dkt. 48 Exhibit 1 to Exhibit 14 1582-1641
IX 48-2 05/01/17 Dkt. 48 Exhibit 15 to 32 1642-1720
IX 48-3 05/01/17 Dkt. 48 Exhibit 33 to 43 1721-1806
IX & X 48-4 05/01/17 Dkt. 48 Exhibit 44 to 47 1807-1841
X 48-5 05/01/17 Dkt. 48 Exhibit 48 to 57 1842-1935
X 49 05/01/17 Dkt. 48 Affidavit 1936-1948
X 50 05/01/17 Motion For Recusal 1949
X 50-1 05/01/17 Dkt. 50 Exhibit A to Exhibit I 1973-2042
X 51 05/01/17 Pro Se Motion of Continuance 2043-2046
XI 54 05/03/17 Order Denying Motion for 2047-2049
Reconsideration (Dkt. 48)
XI 55 05/03/17 Defendant’s Motion to Tax 2050-2055
Costs with Verified Bill of
Costs
XI 55-1 05/03/17 Dkt. 55 Exhibit A 2056-2081
XI 56 05/03/17 Plaintiff’s Motion to Stay 2082-2097
District Court Administrative
Proceedings of
(1) Pro Se Motion of
Continuance
(2) Motion for
Reconsideration

vii
(3) Motion of Recusal,
Pending Appeal
XI 56-1 05/03/17 Plaintiff’s Responses and 2098
Objections to Defendant’s First
Set of Interrogatories to
Plaintiff. + Exhibits
XI 59 05/08/17 Directions to Clerk for Notice 2164
of Appeal dated April 26, 2017
XI 59-1 05/08/17 Dkt. 59 Exhibit A 2166
XI 60 05/10/17 Notice of Appeal for Dkt. 57; 2178
dated May 10, 2017
XI 61 05/10/17 IFP of USCA FC 2180
XI 64 05/17/17 Plaintiff Opposition to 2185
Defendant’s Bill of Costs

XI 64-1 05/17/17 Dkt. 64 Exhibit A to E 2199


XI & 64-2 05/17/17 Dkt. 64 Exhibit F 2214
XII
XII 64-3 05/17/17 Dkt. 64 Exhibit G 2300
XII 64-4 05/17/17 Dkt. 64 Exhibit H 2345
XII 64-5 05/17/17 Dkt. 64 Exhibit 2400
XII 64-6 05/17/17 Dkt. 64 Exhibit 2304
XII 66 05/19/17 Order granting Dkt. 64 in favor 2405
of Defendant
XII 67 05/22/17 Bill of Costs 2412
XII 69 05/22/17 Direction to Clerk for Notice of 2413
Appeal dated May 10, 2017
XII 70 05/22/17 Notice of Appeal to USCA FC 2429
and Petition of Review
XII 71 05/22/17 Notice of Appeal for Dkt. 66 2431
dated May 22, 2017
XII 74 05/23/17 Directions to the Clerk; 2433
Transfer Error

viii
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

Zainulabeddin v. University of South Florida Board of Trustees


Dashboard

Florida Middle District Court


Judge: James S Moody, Jr
Referred: Thomas G Wilson
Case #: 8:16-cv-00637
Nature of Suit 440 Civil Rights - Other Civil Rights
Cause 29:0794 Job Discrimination (Handicap)
Case Filed: Mar 17, 2016
Terminated: Apr 20, 2017

Docket Parties (2) Related Cases (4) News

Last checked: Tuesday Sep 13, 2016 5:04 AM EDT Update Parties

Defendant
Represented By
University of South Florida Board of Trustees
John F. Dickinson
Constangy, Brooks, Smith, & Prophete, LLP
jdickinson@constangy.com

John Sikes Gibbs


Constangy, Brooks, Smith, & Prophete, LLP
egibbs@constangy.com

J. Ray Poole, Jr.


Constangy, Brooks, Smith, & Prophete, LLP
rpoole@constangy.com

Plaintiff
Represented By
Nausheen Zainulabeddin
Stanley Robert Apps
Stanley R. Apps, P.A.
stan.apps@gmail.com

0:17-prici-11888 - Nausheen Zainulabeddin v. University of South Florida Bo 04/27/2017

0:17-prici-12134 - Nausheen Zainulabeddin v. University of South Florida Bo 05/11/2017

https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 1/15
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

0:17-prici-12376 - Nausheen Zainulabeddin v. University of South Florida Bo 05/24/2017

0:17-cvpri-02083 - Zainulabeddin v. USF Board of Trustees 05/25/2017

Navigation Edit Alert

Docket last updated: 09/01/2017 11:59 PM EDT Update Now

Friday, July 28, 2017

82 appeal USCA Mandate Fri 12:08 PM


MANDATE of USCA for the Federal Circuit terminating appeal as to70 Notice of appeal filed by Nausheen
Zainulabeddin Issued as Mandate: 7/27/17 USCA number: 17-2083 ML. (JNB)

81 appeal USCA order Fri 12:07 PM


ORDER of USCA for the Federal Circuit:. The motion to acknowledge Ms. Zainulabeddin's filing as timely31 is
granted. The petition for panel rehearing30 is denied. All other pending motions28 3233 are denied as moot.
No further motions will be docketed or considered as to70 Notice of appeal filed by Nausheen Zainulabeddin.
EOD: 7/27/17; USCA number: 17-2083 ML. (JNB)

Tuesday, June 20, 2017

80 3 pgs appeal USCA order Tue 11:57 AM

ORDER of USCA filed terminating appeal; denying as moot motion to allow efiling19 filed by Appellant
Nausheen Zainulabeddin; denying as moot motion for other relief15 filed by Appellant Nausheen
Zainulabeddin, denying as moot motion for other relief11 filed by Appellant Nausheen Zainulabeddin; denying
as moot motion to correct document14 filed by Appellant Nausheen Zainulabeddin; denying as moot motion
for leave to proceed in forma pauperis7 filed by Appellant Nausheen Zainulabeddin; denying as moot motion
to correct or supplement record on appeal4 filed by Appellant Nausheen Zainulabeddin. Each side shall bear
its own costs as to70 Notice of appeal filed by Nausheen Zainulabeddin. EOD: 6/20/17; USCA number: 17-
2083 ML. (JNB)

Thursday, June 08, 2017


79 appeal Designation of Record on Appeal Fri 2:55 PM
DESIGNATION of Record on Appeal (Directions to the Clerk) by Nausheen Zainulabeddin re71 Notice of
appeal.(AG)

Att: 1 Mailing Envelope

Monday, June 05, 2017

https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 2/15
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

78 4 pgs notice Notice (Other) Tue 3:49 PM

NOTICE to the clerk of corrections needed of docketing errors - May 10, 2017 thru Mary 31, 2017 by
Nausheen Zainulabeddin.(AG)

Att: 1 Exhibit,
Att: 2 Exhibit,
Att: 3 Mailing Envelope

77 2 pgs order Order on motion to supplement Mon 9:12 AM

ORDER denying 63 Plaintiff's Motion to Supplement the Record on Appeal. Signed by Judge James S.
Moody, Jr. on 6/5/2017. (LN)

Wednesday, May 31, 2017


appeal Transmittal to USCA Wed 8:43 AM
TRANSMITTAL to USCA forwarding Order granting appeal in forma pauperis re71 Notice of appeal,60 Notice
of appeal USCA number: 17-11888 G and 17-12134 C. (BSN)

Tuesday, May 30, 2017


76 order Order on motion for leave to appeal in forma pauperis/affidavit of indigency Tue 5:37 PM
ORDER granting 72 Motion for leave to appeal in forma pauperis/affidavit of indigency. Signed by Magistrate
Judge Thomas G. Wilson on 5/30/2017. (Wilson, Thomas)

75 5 pgs respm Response in Opposition to Motion Tue 5:01 PM

RESPONSE in Opposition re63 MOTION to supplement Record on Appeal and support for Motion and
Declaration for leave to proceed In Forma Pauperis (issues on appeal, Dkt. 61) to Magistrate Judge filed by
University of South Florida Board of Trustees. (Mans, Lori)

appeal Transmittal to USCA Tue 10:21 AM


TRANSMITTAL to USCA forwarding Order granting In Forma Pauperis re60 Notice of appeal USCA number:
17-12134 C. (BSN)

Wednesday, May 24, 2017


73 56 pgs appeal Transmittal of initial appeal package Wed 3:18 PM

TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet,
order/judgment being appealed, and motion, if applicable to USCA re70 Notice of appeal,71 Notice of appeal.
(KMM)

appeal Transmittal to USCA Wed 2:47 PM


TRANSMITTAL to USCA forwarding Order granting appeal in forma pauperis re44 Notice of appeal USCA
number: 17-11888 G. (BSN)

Tuesday, May 23, 2017

https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 3/15
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

74 4 pgs notice Notice (Other) Wed 3:23 PM

DIRECTIONS TO THE CLERK by Nausheen Zainulabeddin. (BSN)

68 order Order on motion for leave to appeal in forma pauperis/affidavit of indigency Tue 6:02 PM
ORDER granting 61 Motion for leave to appeal in forma pauperis/affidavit of indigency. Signed by Magistrate
Judge Thomas G. Wilson on 5/23/2017. (Wilson, Thomas)

Monday, May 22, 2017


72 motion Appeal in forma pauperis/affidavit of indigency Wed 3:10 PM
MOTION for leave to appeal in forma pauperis/affidavit of indigency by Nausheen Zainulabeddin. (KMM)

71 2 pgs appeal Notice of appeal Wed 3:09 PM

NOTICE OF APPEAL to USCA as to66 Order on Motion for Taxation of Costs by Nausheen Zainulabeddin.
Filing fee not paid. (KMM)

70 2 pgs appeal Notice of appeal Wed 3:07 PM

NOTICE OF APPEAL to Federal Circuit as to42 Order on motion for summary judgment,54 Order on Motion for
ReconsiderationOrder on motion for recusal by Nausheen Zainulabeddin. Filing fee not paid.(KMM)

Att: 1 2 pgs Petition for Review

69 16 pgs notice Notice (Other) Wed 3:03 PM

Directions to the Clerk, by Nausheen Zainulabeddin (KMM)

67 1 pgs misc Bill of costs Mon 8:30 AM

BILL OF COSTS taxed against Plaintiff in the amount of $5,382.15. Signed by Deputy Clerk. (AD)

Friday, May 19, 2017


66 7 pgs order Order on Motion for Taxation of Costs Fri 10:56 AM

ORDER: Defendant's Motion to Tax Costs 55 is granted in part and denied in part as explained herein.
Defendant is entitled to $5,382.15 in costs. The Clerk of Court is directed to enter a Bill of Costs in the amount
of $5,382.15 in favor of Defendant and against Plaintiff. Signed by Judge James S. Moody, Jr. on 5/19/2017.
(LN)

Wednesday, May 17, 2017


65 misc Certificate of interested persons and corporate disclosure statement Thu 10:05 AM
CERTIFICATE of interested persons and corporate disclosure statement re3 Related case order and track 2
notice by Nausheen Zainulabeddin. (BSN)

64 14 pgs respm Response in Opposition to Motion Thu 10:03 AM

RESPONSE in Opposition re55 MOTION for Taxation of Costs with Verified Bill of Costs and Supporting
Memorandum of Law filed by Nausheen Zainulabeddin.(BSN)

Att: 1 19 pgs Exhibit A-E,

https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 4/15
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

Att: 2 99 pgs Exhibit F,

Att: 3 45 pgs Exhibit G,

Att: 4 55 pgs Exhibit H,


Att: 5 3 pgs Exhibit,

Att: 6 3 pgs Exhibit,


Att: 7 2 pgs Exhibit

Tuesday, May 16, 2017

63 19 pgs motion Supplement Tue 3:55 PM

MOTION to supplement Record on Appeal and support for Motion and Declaration for leave to proceed In
Forma Pauperis (issues on appeal, Dkt. 61) to Magistrate Judge by Nausheen Zainulabeddin.(BSN)

Att: 1 38 pgs Exhibit A,


Att: 2 101 pgs Exhibit 1,

Att: 3 102 pgs Exhibit 2,


Att: 4 112 pgs Exhibit 3,

Att: 5 161 pgs Exhibit 4,

Att: 6 126 pgs Exhibit 5,


Att: 7 72 pgs Exhibit 6,

Att: 8 100 pgs Exhibit 7,


Att: 9 87 pgs Exhibit 8,

Att: 10 141 pgs Exhibit 9,

Att: 11 91 pgs Exhibit 10,


Att: 12 130 pgs Exhibit 11,

Att: 13 139 pgs Exhibit 12

Wednesday, May 10, 2017


62 15 pgs appeal Transmittal of initial appeal package Thu 10:52 AM
TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet,
order/judgment being appealed, and motion, if applicable to USCA re60 Notice of appeal. (BSN)

61 5 pgs motion Appeal in forma pauperis/affidavit of indigency Thu 10:44 AM

MOTION for leave to appeal in forma pauperis/affidavit of indigency by Nausheen Zainulabeddin.(BSN)


Motions referred to Magistrate Judge Thomas G. Wilson.

Att: 1 84 pgs Exhibit

https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 5/15
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

60 2 pgs appeal Notice of appeal Thu 10:43 AM

NOTICE OF APPEAL as to 57 Order on motion to stay,54 Order on Motion for Reconsideration Order on
motion for recusal by Nausheen Zainulabeddin. Filing fee not paid. (BSN)

Monday, May 08, 2017

59 2 pgs appeal Designation of Record on Appeal Tue 4:58 PM

DESIGNATION (Directions to the Clerk) of Record on Appeal by Nausheen Zainulabeddin re44 Notice of
appeal(AG)

Att: 1 12 pgs Exhibit A

Friday, May 05, 2017


appeal Transmittal to USCA Fri 8:11 AM
TRANSMITTAL to USCA forwarding ORDER granting Motion for leave to appeal in forma pauperis/affidavit of
indigency re44 Notice of appeal USCA number: 17-11888 G. (KMM)

Thursday, May 04, 2017


58 order Order on motion for leave to appeal in forma pauperis/affidavit of indigency Thu 4:21 PM
ORDER granting 45 Motion for leave to appeal in forma pauperis/affidavit of indigency. Signed by Magistrate
Judge Thomas G. Wilson on 5/4/2017. (Wilson, Thomas)

57 order Order on motion to stay Thu 1:57 PM


ENDORSED ORDER denying as moot 56 motion to stay. Signed by Judge James S. Moody, Jr. on 5/4/2017.
(LN)

Wednesday, May 03, 2017

56 16 pgs motion Stay Thu 10:57 AM

MOTION to stay documents re48 ,49 ,50 and51 pending appeal by Nausheen Zainulabeddin.(BSN)

Att: 1 66 pgs Exhibit

55 6 pgs motion Taxation of Costs Wed 5:26 PM

MOTION for Taxation of Costs with Verified Bill of Costs and Supporting Memorandum of Law by University of
South Florida Board of Trustees.(Mans, Lori) Motions referred to Magistrate Judge Thomas G. Wilson.

Att: 1 26 pgs Exhibit Motion to Tax Costs Exhibit A

54 3 pgs order Order on Motion for Reconsideration Order on motion for recusal Wed 1:04 PM

ORDER denying 48 Motion for Reconsideration; denying 50 Motion for Recusal. Signed by Judge James S.
Moody, Jr. on 5/3/2017. (LN)

53 order Order on Motion to Continue Wed 11:18 AM


ENDORSED ORDER denying 51 Motion to Continue. Signed by Judge James S. Moody, Jr. on 5/3/2017. (LN)

https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 6/15
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

52 order Order on Motion to Withdraw as Attorney Wed 11:17 AM


ENDORSED ORDER granting 47 Motion to Withdraw as Attorney. Attorney Stanley Robert Apps terminated.
Pro se Plaintiff's address of record is 4409 W. Varn Avenue, Tampa, FL 33616. Signed by Judge James S.
Moody, Jr on 5/3/2017. (LN)

Tuesday, May 02, 2017

51 4 pgs motion Continue Wed 10:49 AM

MOTION to Continue by Nausheen Zainulabeddin. (BSN)

Monday, May 01, 2017

50 23 pgs motion Recusal Tue 12:48 PM

MOTION for Recusal by Nausheen Zainulabeddin.(BSN)

Att: 1 70 pgs Exhibit A-F

49 13 pgs misc Affidavit Tue 12:47 PM

AFFIDAVIT of Nausheen Zainulabeddin re:48 MOTION for Reconsideration re43 Judgment by Nausheen
Zainulabeddin. (BSN)

48 26 pgs motion Reconsideration Tue 12:46 PM

MOTION for Reconsideration re43 Judgment by Nausheen Zainulabeddin.(BSN)

Att: 1 60 pgs Exhibit 1-14,

Att: 2 79 pgs Exhibit 15-32,

Att: 3 89 pgs Exhibit 33-43,


Att: 4 129 pgs Exhibit 44-57

Thursday, April 27, 2017

47 3 pgs motion Withdraw as Attorney Thu 7:58 PM

MOTION for Stanley R. Apps to withdraw as attorney for the Plaintiff, Nausheen Zainulabeddin, based upon
her election to proceed pro se by Stanley Robert Apps. (Apps, Stanley) Motions referred to Magistrate Judge
Thomas G. Wilson.

46 64 pgs appeal Transmittal of initial appeal package Thu 9:41 AM

TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet,
order/judgment being appealed, and motion, if applicable to USCA re44 Notice of appeal. (BSN)

Wednesday, April 26, 2017

45 5 pgs motion Appeal in forma pauperis/affidavit of indigency Thu 9:14 AM


MOTION for leave to appeal in forma pauperis/affidavit of indigency by Nausheen Zainulabeddin.(BSN)
Motions referred to Magistrate Judge Thomas G. Wilson.

Att: 1 30 pgs Exhibit

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

44 2 pgs appeal Notice of appeal Thu 9:13 AM

NOTICE OF APPEAL as to42 Order on motion for summary judgment by Nausheen Zainulabeddin. Filing fee
not paid. (BSN)

Thursday, April 20, 2017


43 2 pgs misc Judgment Thu 9:07 AM

JUDGMENT in favor of University of South Florida Board of Trustees against Nausheen Zainulabeddin (Signed
by Deputy Clerk) (BSN)

Wednesday, April 19, 2017

42 30+ pgs order Order on motion for summary judgment Wed 4:07 PM

ORDER: Defendant's Motion for Summary Judgment (Doc. 22) is granted. The Clerk of Court is directed to
enter final judgment in favor of Defendant and against Plaintiff. After entry of final judgment, the Clerk of Court
is directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody,
Jr. on 4/19/2017. (AD)

Friday, March 24, 2017

41 5 pgs respm Memorandum in opposition Fri 12:18 PM

MEMORANDUM in opposition re37 Reply to Response to Motion Plaintiff's Surreply to Defendant's Reply to
Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment filed by Nausheen
Zainulabeddin.(Apps, Stanley)

Att: 1 4 pgs Exhibit A,

Att: 2 4 pgs Exhibit B

Wednesday, March 22, 2017

40 2 pgs adr Mediation report Wed 3:04 PM

MEDIATION report Hearing held on 3/22/2017. Hearing outcome: IMPASSE. (Shulman, Christopher)

Tuesday, March 21, 2017

39 order Order on Motion for Leave to File Tue 1:14 PM


ENDORSED ORDER granting 38 Motion for Leave to File Surreply. Surreply shall be filed within seven (7) days
of the date of this Order. Signed by Judge James S. Moody, Jr. on 3/21/2017. (LN)

Saturday, March 18, 2017

38 3 pgs motion Leave to File Document Sat 2:57 AM

MOTION for leave to file Surreply of no more than 5 pages to Defendant's Reply Memorandum to Plaintiff's
Response in Opposition to Defendant's Motion for Summary Judgment by Nausheen Zainulabeddin. (Apps,
Stanley)

Wednesday, March 15, 2017

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

37 9 pgs respm Reply to Response to Motion Wed 2:00 PM

REPLY to Response to Motion re22 MOTION for summary judgment filed by University of South Florida Board
of Trustees. (Mans, Lori)

Wednesday, March 08, 2017

36 1 pgs order Order on Motion to Withdraw as Attorney Thu 5:27 PM

ORDER granting 35 Motion to Withdraw as Attorney and for Substitution of Counsel. Attorney J. Ray Poole,
Jr., terminated. Signed by Magistrate Judge Thomas G. Wilson on 3/8/2017. (DMS)

Tuesday, March 07, 2017

35 3 pgs motion Withdraw as Attorney Tue 5:00 PM

MOTION for J. Ray Poole to withdraw as attorney and for Substitution of Counsel and Supporting
Memorandum of Law by University of South Florida Board of Trustees. (Dickinson, John)

Wednesday, March 01, 2017

34 order Order on Motion for Leave to File Wed 3:43 PM


ENDORSED ORDER granting 33 Motion for Leave to File Reply. Reply is limited to 10 pages and shall be filed
within 14 days. Signed by Judge James S. Moody, Jr. on 3/1/2017. (LN)

33 3 pgs motion Leave to File Document Wed 2:28 PM

MOTION for leave to file Reply to Plaintiff's Response in Opposition to Defendant's Motion for Summary
Judgment by University of South Florida Board of Trustees. (Poole, J.)

Tuesday, February 28, 2017

32 order Order on motion to extend time Tue 9:16 AM


ENDORSED ORDER granting 31 Joint Motion to extend time to conduct Mediation until MARCH 22, 2017.
Signed by Judge James S. Moody, Jr. on 2/28/2017. (LN)

Monday, February 27, 2017

31 3 pgs motion Extend time Mon 4:23 PM

Joint MOTION to extend time to conduct Mediation until March 22, 2017 by Nausheen Zainulabeddin. (Apps,
Stanley)

Sunday, February 19, 2017

30 2 pgs notice Notice (Other) Sun 6:40 PM

NOTICE by Nausheen Zainulabeddin re27 Response in Opposition to Motion,23 Notice (Other) Notice of Filing
COMPLETE Deposition Transcript of Dr. Ambuj Kumar, M.D., including Exhibit omitted by Defendant(Apps,
Stanley)

Att: 1 86 pgs Exhibit Deposition of Ambuj Kumar, MD,


Att: 2 1 pgs Exhibit,

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

Att: 3 2 pgs Exhibit,

Att: 4 6 pgs Exhibit,

Att: 5 6 pgs Exhibit,

Att: 6 19 pgs Exhibit,

Att: 7 2 pgs Exhibit,


Att: 8 2 pgs Exhibit,

Att: 9 1 pgs Exhibit,

Att: 10 1 pgs Exhibit,

Att: 11 2 pgs Exhibit,

Att: 12 1 pgs Exhibit,


Att: 13 1 pgs Exhibit,

Att: 14 1 pgs Exhibit,

Att: 15 1 pgs Exhibit,

Att: 16 1 pgs Exhibit,

Att: 17 8 pgs Exhibit

29 2 pgs notice Notice (Other) Sun 6:15 PM

NOTICE by Nausheen Zainulabeddin re27 Response in Opposition to Motion Notice of Filing Deposition
Transcript of Dr. Steven Specter, Ph.D.(Apps, Stanley)

Att: 1 182 pgs Exhibit Deposition of Steven Specter,

Att: 2 6 pgs Exhibit,

Att: 3 2 pgs Exhibit,


Att: 4 2 pgs Exhibit,

Att: 5 1 pgs Exhibit,

Att: 6 1 pgs Exhibit,

Att: 7 6 pgs Exhibit,

Att: 8 1 pgs Exhibit,

Att: 9 1 pgs Exhibit,


Att: 10 2 pgs Exhibit,

Att: 11 17 pgs Exhibit,

Att: 12 1 pgs Exhibit,

Att: 13 1 pgs Exhibit,

Att: 14 7 pgs Exhibit,

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

Att: 15 9 pgs Exhibit,

Att: 16 9 pgs Exhibit,


Att: 17 1 pgs Exhibit,

Att: 18 6 pgs Exhibit,

Att: 19 8 pgs Exhibit,

Att: 20 1 pgs Exhibit,

Att: 21 2 pgs Exhibit,


Att: 22 1 pgs Exhibit

28 2 pgs notice Notice (Other) Sun 5:38 PM

NOTICE by Nausheen Zainulabeddin re27 Response in Opposition to Motion Notice of Filing Affidavit of the
Plaintiff in support of Plaintiff's Response in Opposition to Summary Judgment(Apps, Stanley)

Att: 1 27 pgs Affidavit of Nausheen Zainulabeddin,

Att: 2 16 pgs Exhibit,


Att: 3 8 pgs Exhibit,

Att: 4 15 pgs Exhibit,

Att: 5 24 pgs Exhibit

27 20 pgs respm Response in Opposition to Motion Sun 4:13 PM

RESPONSE in Opposition re22 MOTION for summary judgment with supporting Memorandum of Law filed by
Nausheen Zainulabeddin. (Apps, Stanley)

26 12 pgs misc Statement of undisputed facts Sun 4:11 PM

STATEMENT of undisputed facts re:22 MOTION for summary judgment Statement of DISPUTED MATERIAL
FACTS, precluding entry of summary judgment by Nausheen Zainulabeddin..(Apps, Stanley)

Att: 1 8 pgs Exhibit A,

Att: 2 5 pgs Exhibit B,

Att: 3 9 pgs Exhibit C

Thursday, February 09, 2017

25 2 pgs misc Notice of withdrawal of motion Thu 4:00 PM

NOTICE of withdrawal of motion by Nausheen Zainulabeddin re19 MOTION to Take Deposition from Dr.
Joanne Valeriano-Marcet Subsequent to Close of Discovery, with Incorporated Statement of Good Cause
Wherefore filed by Nausheen Zainulabeddin (Apps, Stanley)

Monday, February 06, 2017

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

24 order Order on motion to extend time Mon 9:49 AM


ENDORSED ORDER granting 21 Joint Motion to extend time to conduct mediation. Extension granted through
MARCH 1, 2017. Signed by Judge James S. Moody, Jr. on 2/6/2017. (LN)

Saturday, February 04, 2017

23 2 pgs notice Notice (Other) Sat 5:03 PM

NOTICE by University of South Florida Board of Trustees re22 MOTION for summary judgment (Poole, J.)

Att: 1 120 pgs Exhibit Deposition of Nausheen Zainulabeddin,

Att: 2 115 pgs Exhibit Deposition of Nausheen Zainulabeddin Part 2,

Att: 3 87 pgs Exhibit Deposition of Dr. Deborah Roth and Exhibits Thereto,

Att: 4 87 pgs Exhibit Deposition of Dr. Ambuj Kumar and Exhibits Thereto,

Att: 5 73 pgs Exhibit Deposition of Dr. Saundra Stock,


Att: 6 61 pgs Exhibit Deposition of Dr. Saundra Stock and Exhibits Thereto Part 2

22 25 pgs motion Summary judgment Sat 3:49 PM

MOTION for summary judgment by University of South Florida Board of Trustees. (Poole, J.)

Friday, February 03, 2017

21 3 pgs motion Extend time Fri 8:45 PM

Joint MOTION to extend time to Complete Mediation by University of South Florida Board of Trustees. (Poole,
J.)

Thursday, February 02, 2017

20 2 pgs order Order on Motion to Take Deposition Thu 5:30 PM

ORDER granting 19 Motion to Take Deposition of Dr. Joanne Valeriano-Marcet on February 3, 2017. See Order
for further details. Signed by Magistrate Judge Thomas G. Wilson on 2/2/2017. (DMS)

Wednesday, February 01, 2017

19 6 pgs motion Take Deposition Wed 4:43 PM

MOTION to Take Deposition from Dr. Joanne Valeriano-Marcet Subsequent to Close of Discovery, with
Incorporated Statement of Good Cause Wherefore by Nausheen Zainulabeddin.(Apps, Stanley)

Att: 1 3 pgs Exhibit A

Tuesday, December 13, 2016

18 2 pgs order Order appointing mediator/scheduling mediation Tue 9:39 AM

ORDER appointing Christopher M. Shulman as mediator in this action. Mediation Conference set for
FEBRUARY 10, 2017. Signed by Judge James S. Moody, Jr. on 12/13/2016. (LN)

Friday, December 09, 2016

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

17 2 pgs adr Notice of selection of mediator Fri 10:32 PM

NOTICE OF SELECTION of Christopher M. Shulman as mediator by University of South Florida Board of


Trustees. (Poole, J.)

Wednesday, November 30, 2016

16 order Order on Motion for Extension of Time to Complete Discovery Wed 9:53 AM
ENDORSED ORDER granting 15 the Parties' Joint Motion for Extension of Time to Complete Discovery.
Discovery shall be completed by February 1, 2017. Dispositive Motions are now due February 4, 2017. All
other dates in the Case Management Order remain unchanged. Signed by Judge James S. Moody, Jr on
11/30/2016. (RWL)

Tuesday, November 29, 2016

15 4 pgs motion Extension of Time to Complete Discovery Tue 3:53 PM

Joint MOTION for Extension of Time to Complete Discovery by University of South Florida Board of Trustees.
(Poole, J.)

Wednesday, November 09, 2016

14 5 pgs order Order referring case to mediation Wed 1:55 PM

ORDER referring case to mediation and directing selection of a mediator on or before 12/9/2016. Mediation
shall be conducted on or before 3/1/2017. Signed by Judge James S. Moody, Jr on 11/9/2016. (LN)

Friday, September 09, 2016


13 order Order on Motion to Withdraw as Attorney Fri 9:34 AM
ENDORSED ORDER granting 12 Motion to Withdraw as Attorney. Attorney John Sikes Gibbs terminated.
Attorney John F. Dickinson is directed to file a Notice of Appearance in this case. Signed by Judge James S.
Moody, Jr on 9/9/2016. (LN)

Thursday, September 08, 2016

12 3 pgs motion Withdraw as Attorney Thu 3:57 PM

Unopposed MOTION for Gibbs to withdraw as attorney by University of South Florida Board of Trustees.
(Poole, J.)

Wednesday, April 27, 2016

11 32 pgs answer Answer to Complaint Wed 1:48 PM

ANSWER and affirmative defenses to Complaint by University of South Florida Board of Trustees.(Gibbs, John)

Wednesday, April 13, 2016

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

10 9 pgs order Order on motion to dismiss Wed 11:18 AM

ORDER: Defendant's Motion to Dismiss and For More Definite Statement 4 is DENIED. Defendant shall file an
answer within fourteen (14) days of the entry of this order. Signed by Judge James S. Moody, Jr. on 4/13/2016.
(LN)

Wednesday, April 06, 2016

9 3 pgs order Case management and scheduling order Wed 10:23 AM

CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 1/3/2017, Dispositive motions due by
2/1/2017, Pretrial Conference set for TUESDAY, MAY 2, 2017 at 9:15 AM in Tampa Courtroom 17 before Judge
James S. Moody Jr., Jury Trial set for JUNE 2017 trial term in Tampa Courtroom 17 before Judge James S.
Moody Jr. Signed by Judge James S. Moody, Jr. on 4/6/2016. (AR)

Monday, April 04, 2016

8 misc Case Management Report Mon 2:02 PM


CASE MANAGEMENT REPORT. (Gibbs, John)

Wednesday, March 30, 2016


7 notice Notice of pendency of related cases Wed 5:23 PM
NOTICE of pendency of related cases re3 Related case order and track 2 notice per Local Rule 1.04(d) by
Nausheen Zainulabeddin. Related case(s): yes (Apps, Stanley)

6 13 pgs respm Response in Opposition to Motion Wed 4:46 PM

RESPONSE in Opposition re4 MOTION to Dismiss Plaintiff's Complaint and For More Definite Statement and
Supporting Memorandum of Law filed by Nausheen Zainulabeddin.(Apps, Stanley)

Att: 1 6 pgs Exhibit A

Friday, March 25, 2016

5 notice Notice of pendency of related cases Fri 1:15 PM


NOTICE of pendency of related cases per Local Rule 1.04(d) by University of South Florida Board of Trustees.
Related case(s): No (Gibbs, John)

Thursday, March 24, 2016

4 11 pgs motion Dismiss Thu 2:15 PM

MOTION to Dismiss Plaintiff's Complaint and For More Definite Statement and Supporting Memorandum of
Law by University of South Florida Board of Trustees. (Gibbs, John)

Monday, March 21, 2016


3 order Related case order and track 2 notice Mon 4:27 PM
RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - track 2. Issued by Deputy Clerk
on 3/21/2016. (AR)

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9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court

Thursday, March 17, 2016


2 cmp Complaint Fri 12:03 PM
COMPLAINT against University of South Florida Board of Trustees with Jury Demand filed by Nausheen
Zainulabeddin . Originally filed in state court on 1/22/16.(BSN) Modified on 3/18/2016 (BSN)

Att: 1 Exhibit

1 6 pgs notice Notice of Removal Fri 12:01 PM

NOTICE OF REMOVAL from 13th Judicial Circuit in and for Hillsborough County, Florida, case number 16-CA-
000669 filed in State Court on 1/22/16. Filing fee $ 400, receipt number tpa 035597 filed by University of
South Florida Board of Trustees.(BSN)

Att: 1 4 pgs Exhibit,

Att: 2 3 pgs Exhibit,


Att: 3 3 pgs Exhibit,
Att: 4 2 pgs Civil Cover Sheet

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https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 15/15
Case 8:16-cv-00637-JSM-TGW Document 6 Filed 03/30/16 Page 1 of 13 PageID 214

A-210
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8-16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.
______________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO


DEFENDANT’S MOTION TO DISMISS
AND FOR MORE DEFINITE STATEMENT,
WITH INCORPORATED MEMORANDUM OF LAW

The Plaintiff, Nausheen Zainulabeddin (“Zainulabeddin”), by and

through her undersigned counsel, hereby responds in opposition to Defendant,

University of South Florida Board of Trustees (“USF”)’s Motion to Dismiss and

for More Definite Statement (hereinafter the “Motion” or “Motion to Dismiss”).

In support of her Opposition, Zainulabeddin states as follows:

I. RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO


DISMISS COUNTS I AND II (STATE TORT CLAIMS)

USF argues that Zainulabeddin’s state law tort causes of action, stated in

Counts I and II of her Complaint, are untimely because Zainulabeddin’s letter

of claim dated May 12, 2016 was not sent within three years of accrual of her

claims, as required by Florida law. USF supports this argument by construing

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certain allegations of Zainulabeddin’s Complaint in the manner most favorable

to USF. This is improper, for the reasons shown below.

A. Standard of Review for a Motion to Dismiss


Based on Statute of Limitations

“The statute of limitations is an affirmative defense, and the burden of

proving an affirmative defense is on the defendant.” Lesti v. Wells Fargo Bank,

N.A., 2013 WL 1137482, at *1 (M.D. Fla. March 19, 2013) (citing Tello v. Dean Witter

Reynolds, Inc., 358 F.3d 840,845 (11th Cir. 2004)). As a result, a motion to dismiss

on statute of limitations grounds should not be granted, when resolution of

such a motion depends on facts not yet in evidence or on construing factual

allegations of the Complaint in a manner that favors the Defendant. Omar ex

rel. Cannon v. Lindsey, 334 F.3d 1246, 1252 (11th Cir. 2003); Lesti at *1.

B. USF’s Affirmative Defense of Statute of Limitations as to Counts I and II


Must Be Rejected at the Motion to Dismiss Phase,
Because USF Has Not Met its Burden of Proving This Defense

USF’s Motion to Dismiss assumes that Zainulabeddin’s tort claims

accrued on February 6, 2012, the date when Zainulabeddin first obtained a copy

of the complete neuropsychological report that USF voluntarily undertook to

provide for her. See Plaintiff’s Compl., Dkt. 2, ¶¶s 31; 33-35; 53-59; 129-130; 136;

138-140; 143; 146-47; 150-53; 155-57. USF’s assumption that the tort claims

accrued on this specific date is based on construing Zainulabeddin’s Complaint

in a manner that favors USF.

Notably, Zainulabeddin construes her Complaint quite differently. Even

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after February 6, 2012, USF continued to behave in a manner calculated to

dissuade Zainulabeddin from asserting her legal rights, such as by permitting

Zainulabeddin to re-enroll in medical school and granting her reasonable

accommodations of disability. Plaintiff’s Compl., Dkt. 2, ¶¶s 60-65; 81-82.

Zainulabeddin relied on these actions by USF as demonstrating USF’s

intention to rectify the harm to her caused by USF’s earlier negligent

misrepresentations and fiduciary violations. Zainulabeddin did not learn until

months later that USF would refuse to rectify all the harm done by USF’s

misconduct. She did not learn this until July 30, 2013, when USF refused to

reimburse Zainulabeddin for the full amount of tuition she paid for the 2011-

2012 academic year, in which her performance was compromised due to USF’s

fiduciary violations and negligence. Plaintiff’s Compl., Dkt. 2, ¶¶s 73-74; 77-80.

Indeed, it was on July 30, 2013 that Zainulabeddin learned for the first

time that USF, through its agent Dr. Steven Specter, would oppose her

attempts to rectify in full the harm to Zainulabeddin from USF’s earlier

negligence and fiduciary violations. Plaintiff’s Compl., Dkt. 2, ¶¶s 78-79. Until

that date, USF and Specter had lulled Zainulabeddin into inactivity through

ongoing assurances that she would be treated fairly and that the University

would correct the harmful consequences of its errors. It is only on July 30, 2013

that Zainulabeddin was put on notice that USF, by and through Specter, would

misrepresent facts pertaining to Zainulabeddin in order to avoid refunding her

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A-213
tuition payments for periods when USF’s errors denied her the value of

educational services. Specifically, Specter misrepresented Zainulabeddin’s

activity in the 2011-2012 academic year to the USF Registrar on that date. Id.

From February 6, 2012 until July 30, 2013, USF behaved in a manner

calculated to cause Zainulabeddin to believe that USF took responsibility for

the harm she suffered due to the University’s errors and that USF would take

appropriate actions to rectify the harm done. Zainulabeddin reasonably relied

on USF’s conduct during this period and thereby changed her position for the

worse, by foregoing legal action aimed at seeking remedy for her earlier harm.

Under Florida law, USF’s actions in this period and Zainulabeddin’s reliance

may give rise to equitable estoppel in Zainulabeddin’s favor. Florida Dept. of

Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla. 2002); Major

League Baseball v. Morsani, 790 So.2d 1071, 1076-77 (Fla. 2001) (“Equitable

estoppel presupposes a legal shortcoming in an opposing party’s case that is

directly attributable to the opposing party’s misconduct. The doctrine bars the

wrongdoer from asserting that shortcoming and profiting from his or her own

misconduct.”)

USF may argue that USF’s efforts to partially rectify harm to

Zainulabeddin do not constitute misconduct. However, even apparently

beneficial acts can give rise to equitable estoppel when a purpose of such acts is

to lull another person into declining to exercise legal rights. Morsani, 790 So.2d

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at 1076, citing State ex rel. Watson v. Gray, 48 So.2d 84, 87-88 (Fla. 1950)

(equitable estoppel is applicable “in all cases where one, by word, act or

conduct, willfully caused another to believe in a certain state of things, and

thereby induces him to act on this belief injuriously to himself.”); Miami Nat.

Bank v. Greenfield, 488 S.2d 559, 561 (Fla. Dist. Ct. App. 1986) (“Where the

words or conduct of one party causes another to forbear to his detriment,

equitable estoppel may be applied to prevent harm to the innocent party.”)

At the motion to dismiss phase, neither Zainulabeddin nor USF have

had an opportunity to present proof of their factual assertions. Zainulabeddin

has not yet had an opportunity to show her entitlement to equitable estoppel,

nor has USF had a chance to prove its entitlement to prevail on its statute of

limitations defense. Because of this, it would be premature for the Court to rule

in either party’s favor on this issue at this phase. Omar, 334 F.3d at 1251-52 (it is

premature to dismiss a Complaint for non-compliance with the statute of

limitations where the parties set forth fact-intensive reasons why the motion to

dismiss based on statute of limitations should be granted or denied).

The standard of review prevents the Court from resolving the statutes of

limitations issues based on either party’s unproven representations as to facts

that are not yet in evidence. Id. Similarly, the Court may not resolve statutes of

limitations issues based on a defendant’s self-serving construal of the

allegations of the Complaint. Id. Therefore, the Court must deny USF’s Motion

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to Dismiss as to Counts I and II of Plaintiff’s Complaint, since Defendant’s fact-

intensive arguments regarding the statute of limitations are presented

prematurely and are better suited for consideration in the context of a Motion

for Summary Judgment.

II. RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO


DISMISS COUNT III (CONTRACT CLAIM)

USF asserts that Zainulabeddin’s contract claim, stated in Count III of

her Complaint, must be dismissed because Zainulabeddin “cannot identify a

valid, written contract that was breached.” Dkt. 4 at 4. Again, USF seeks

dismissal on grounds that are better suited for a Motion for Summary

Judgment. Indeed, USF relies on authorities wherein the Court granted

summary judgment for Defendant, as justification for its Motion to Dismiss.

See Dkt. 4 at 4-5, citing Carr v. Board of Regents of Univ. Sys. of Ga., 249 F.App’x

146, 150-51 (11th Cir. 2007) (affirming summary judgment on contract claim based

on failure to prove existence of a valid contract); Williams v. Florida State Univ.,

2014 WL 340562 at *7 (granting summary judgment on contract claim based on

plaintiff’s failure to prove existence of a valid, written contract that was

breached).

The authorities relied on by USF presuppose that a Plaintiff will have a

fair opportunity to present evidence of the existence of the contract on which

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her claim is based. For this reason, USF’s Motion to Dismiss on these grounds

cannot be granted at the Motion to Dismiss phase.

In addition, USF appears to misunderstand the nature of

Zainulabeddin’s contract claim. Zainulabeddin recognizes that USF’s College

of Medicine Medical Student Handbook (“Handbook” or “Medical Student

Handbook”) is not itself a contract between Zainulabeddin and the University.

Rather, Zainulabeddin asserts that she had a contractual relationship with USF

and that certain terms of the Handbook are incorporated by reference in her

contract with the University. See Plaintiff’s Compl., Dkt. 2, ¶¶s 68-70.

Zainulabeddin is no longer in possession of all of the communications

with USF that constitute her contract with USF, such as offer letters, letters of

admission, letters of readmission, letters of acceptance and similar. As such,

Zainulabeddin intends to use the discovery process to obtain appropriate proof

of her contract with USF and of the contract terms, including proof that her

contract incorporates by reference Handbook terms pertaining to tuition

payment and refunds. The authorities cited by USF indicate that

Zainulabeddin must be afforded a fair opportunity to do this.

Lastly, Zainulabeddin notes that USF’s Motion to Dismiss her contract

claim improperly relies on controverting factual allegations of her Complaint,

by asserting that there is no contractual relationship between Zainulabeddin,

when her Complaint clearly alleged the opposite. USF’s reliance on

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controverting Zainulabeddin’s factual allegations, in support of a Motion to

Dismiss, emphasizes the improper character of USF’s Motion.

For these reasons, as set forth more fully below, USF’s Motion to

Dismiss Count III of Zainulabeddin’s Complaint must be denied.

a. Standard of Review for a 12(b)(6) Motion to Dismiss

Dismissal of a cause of action under Rule 12(b)(6) is only justified when

“on the basis of a dispositive issue of law, no construction of the factual

allegations will support the cause of action.” Marshall Cnty. Bd. Of Educ. v.

Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1992). Dismissal under Rule

12(b)(6) may be appropriate where plaintiff’s entitlement to relief “turns purely

on the law” and does not require the Court to draw conclusions as to matters of

fact. Id. The Court must interpret Plaintiff’s well-pleaded factual allegations in

the manner most favorable to Plaintiff when resolving a Motion to Dismiss.

Erickson v. Pardus, 551 U.S. 89 (2007.)

b. USF’s Motion to Dismiss Zainulabeddin’s Contract Claim is Improper,


as it is Plainly Based on Controverting Plaintiff’s Factual Allegations
and Assumes Facts Not in Evidence

This Court cannot grant USF’s Motion to Dismiss Zainulabeddin’s

contract claim, because the Motion assumes that there is no contractual

relationship between Zainulabeddin and USF, which is contrary to the

allegations of her Complaint. Zainulabeddin plainly alleged that she had a

contractual relationship with USF, governing her relationship to USF as a

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Medical Student, and that her contractual relationship with USF was

substantially similar to USF’s contractual relationship with every other medical

student. Plaintiff’s Compl., Dkt. 2, ¶ 68. She also plainly alleged that some, but

not all, portions of the Medical Student Handbook, including portions of the

Handbook pertaining to tuition payment and reimbursement, are incorporated

by reference in her contract with the University. Id. at ¶¶s 69-71.

Zainulabeddin should be given a fair opportunity to prove the existence

and contents of her contract with USF. After the close of discovery, if she is

unable to prove the existence and terms of her contract with USF, then

summary judgment on her contract claim will be appropriate, as shown by Carr

and Williams.

Because USF’s Motion to Dismiss Count III would require the Court to

draw conclusions as to contested matters of fact (such as a factual conclusion

that Zainulabeddin and USF lacked any contractual relationship), USF’s

Motion is improper and cannot be granted. Marshall Cnty. Bd. Of Educ., 992

F.2d at 1174.

III. RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO


DISMISS COUNT IV (UNJUST ENRICHMENT CLAIM)

USF asserts that Zainulabeddin’s unjust enrichment claim, stated as

Count IV of her Complaint, is barred by USF’s sovereign immunity as an

agency of the State of Florida. However, USF’s assertion is overreaching and

incorrect.

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In fact, as this Court has recently concluded, Florida law creates “an

implied waiver of sovereign immunity for breach of contract claims [that]

applies to claims for breach of the express and implied conditions of a written

contract, but does not apply to claims totally outside the terms of a written

contract.” Llorca v. Rambosk, No. 2:15-cv-00017-FtM-29CM (M.D.Fla. May 5, 2015)

at 2-3 (citations omitted), attached hereto as Exhibit A. Here, the issue of

whether Zainulabeddin’s unjust enrichment claim is “totally outside the terms

of a written contract” is a contested matter of fact that is not ripe for resolution

at the Motion to Dismiss phase. Zainulabeddin alleges that she had a

contractual relationship with USF and her unjust enrichment claim pertains to

implied conditions of that written contract. For these reasons, as set forth more

fully below, USF’s Motion to Dismiss Count IV of Zainulabeddin’s Complaint

must be denied.

a. USF’s Motion to Dismiss Zainulabeddin’s Unjust Enrichment Claim


Inaccurately Represents Florida Law on Sovereign Immunity
in the Context of Contract Claims

USF incorrectly asserts that all implied contract claims against Florida

state agencies are barred by sovereign immunity. Dkt. 4 at 7. This is not the law.

The law is correctly stated in this Court’s recent Llorca decision, as follows:

“Florida courts have held that sovereign immunity has been waived for claims

that a state entity breached the express or implied covenants of a written

contract.” Id. at 4. As noted above, Zainulabeddin does allege a written contract

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between herself and USF and her unjust enrichment claim stated as Count IV

relies on implied covenants thereof. Therefore, USF has failed to set forth any

valid basis for its Motion to Dismiss Count IV.

IV. RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION


FOR MORE DEFINITE STATEMENT

Plaintiff disagrees with USF’s assertion that her Complaint is a “shotgun

pleading” that violates Rule 8(a) of the Federal Rules of Civil Procedure.

Zainulabeddin’s Complaint is somewhat lengthy because it covers a long period

of time (from 2009 to 2013) in which USF first committed negligence and

fiduciary violations as to Zainulabeddin (Counts I and II) and later

discriminated against her on the basis of her disability (Counts V and VI).

Furthermore, although Zainulabeddin’s Complaint contains multiple

Counts, each Count does not incorporate by reference the allegations of the

preceding Counts, as is characteristic of the “quintessential shotgun pleading.”

See Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293,

1295 (11th Cir. 2002).

Zainulabeddin recognizes that her Complaint is not a perfect document.

Indeed, looking back at it, her counsel wishes he had been more selective and

precise when re-incorporating earlier factual allegations into each of the six

Counts. However, the Complaint’s imperfections do not rise to the level to

justify a Motion under Rule 12(e). Every factual allegation set forth in the

Complaint is germane to one or more of Zainulabeddin’s six causes of action

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and there are no “rambling recitations” or irrelevant factual allegations, such as

would appear in a “shotgun pleading.” Pelletier v. Zweifel, 921 F.2d 1465, 1517-18

(11th Cir. 1991).

For these reasons, Zainulabeddin respectfully states that USF’s Motion

for More Definite Statement should be denied.

V. CONCLUSION

For the reasons set forth above, Zainulabeddin respectfully asks that

USF’s Motion to Dismiss and for More Definite Statement should be denied in

its entirety.

In the alternative, to the extent the Court grants USF’s Motion to

Dismiss as to any Count of Zainulabeddin’s Complaint, she asks that any

dismissal be without prejudice and with leave to amend.

Respectfully submitted on this 30th day of March, 2016.

/s/ Stanley R. Apps

Stanley R. Apps, Esq.


FL Bar. No. 0108868
Stanley R. Apps, P.A.
1950 Elkhorn Ct., Unit 147
San Mateo, CA 94403
(310) 709-3966
stan.apps@gmail.com
Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on March 30, 2016, I electronically filed the

foregoing with the Clerk of Court by using the CM/ECF system, which will

send a Notice of Electronic Filing to all counsel of record herein.

/s/ Stanley R. Apps

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Exhibit A
Llorca v. Rambosk Doc. 29
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

CARLO LLORCA, an individual,

Plaintiff,

v. Case No: 2:15-cv-17-FtM-29CM

KEVIN RAMBOSK, as the duly


elected Sheriff of Collier
County, Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of Defendant’s

Motion to Dismiss Count IV of Plaintiff's Amended Complaint (Doc.

#22) filed on March 11, 2015. Plaintiff filed a Response (Doc.

#23) on March 13, 2015. For the reasons stated below, the motion

is granted.

I.

Plaintiff has filed an Amended Complaint1 (Doc. #15), against

Defendant Kevin Rambosk in his official capacity as Sheriff of

Collier County, Florida. Plaintiff, a former employee of the

Collier County Sheriff’s Office, alleges that he performed off-

the-clock work for which he was not compensated. Plaintiff further

1
Plaintiff filed his Amended Complaint (Doc. #15) on March 1,
2015. Therefore, Defendant’s Motion to Dismiss Count III of
Plaintiff’s Complaint (Doc. #11) and Defendant’s Amended Motion to
Dismiss Count III of Plaintiff’s Complaint (Doc. #14), filed on
February 17 and February 18, 2015, will be denied as moot.

Dockets.Justia.com
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alleges that he was terminated in retaliation for objecting to the

failure to provide full compensation. According to Plaintiff,

Defendant’s conduct constitutes unjust enrichment and violates the

Fair Labor Standards Act (FLSA) and the Florida Minimum Wage Act

(FMWA). Defendant now moves to dismiss Plaintiff’s unjust

enrichment cause of action (Count IV) on the basis of Florida state

law sovereign immunity. Plaintiff responds that the State of

Florida has waived sovereign immunity under the circumstances

giving rise to his unjust enrichment claim.

II.

“Sovereign immunity is the privilege of the sovereign not to

be sued without its consent.” Va. Office for Prot. & Advocacy v.

Stewart, 131 S. Ct. 1632, 1637 (2011). “In Florida, sovereign

immunity is the rule, rather than the exception,” Pan-Am Tobacco

Corp. v. Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla.

Const. art. X, § 13). Thus, absent a waiver, Florida sovereign

immunity bars suit against the state or one of its political

subdivisions. Id.

Florida’s legislature has explicitly waived sovereign

immunity for liability in torts involving personal injury,

wrongful death, and loss or injury of property. Fla. Stat. §

768.28. Additionally, the Florida Supreme Court has found an

implied waiver of sovereign immunity for breach of contract claims.

Pan-Am, 471 So. 2d at 5-6. That waiver applies to claims for

breach of the express and implied conditions of a written contract,

2
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but does not apply to claims totally outside the terms of a written

contract. County of Brevard v. Miorelli Eng'g, 703 So. 2d 1049,

1051 (Fla. 1997) (absent a written change order, sovereign immunity

barred breach of contract claim against city for extra work beyond

that described in construction contract); see also Champagne-

Webber, Inc. v. Ft. Lauderdale, 519 So. 2d 696, 698 (Fla. 4th DCA

1988) (sovereign immunity waived for claim that city violated

implied covenant not to interfere with performance of written

construction contract by misrepresenting soil conditions).

Here, Plaintiff brings his unjust enrichment claim against

Kevin Rambosk in his official capacity as the Sheriff of Collier

County, Florida. A claim against a Florida county sheriff in his

official capacity is considered a claim against the county he

represents. Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1115

(11th Cir. 2005) (“When, as here, the defendant is the county

sheriff, the suit is effectively an action against the governmental

entity he represents—in this case, Monroe County.”); Abusaid v.

Hillsborough Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1305 (11th

Cir. 2005) (“Florida's constitution labels sheriffs county

officers.”) (quoting Fla. Const. art. VII, § 1(d)). Under Florida

law, counties are political subdivisions entitled to sovereign

immunity to the same extent as the state. Fla. Stat. § 768.28(2).

Thus, the Court must determine whether the state has waived

sovereign immunity for the unjust enrichment claim at issue here.

3
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“A claim for unjust enrichment is an equitable claim, based

on a legal fiction created by courts to imply a ‘contract’ as a

matter of law.” Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d

802, 805 (11th Cir. 1999). Because unjust enrichment claims are

not torts, Florida’s legislature has not waived sovereign immunity

pursuant to Fla. Stat. § 768.28. Plaintiff argues, however, that

his unjust enrichment claim falls within the waiver of sovereign

immunity articulated in Pan-Am and Miorelli because his oral

employment contract with the Sheriff’s Office included the express

(or implied) covenant that he would be compensated for all work

performed at the Sheriff’s direction. Defendant responds that the

terms of Plaintiff’s alleged oral employment contract are

immaterial because there can be no waiver of sovereign immunity

absent a written contract. The Court agrees with Defendant.

As explained above, Florida courts have held that sovereign

immunity has been waived for claims that a state entity breached

the express or implied covenants of a written contract. However,

as explicitly stated by the Florida Supreme Court in Pan-Am, a

duly-authorized written contract is a prerequisite to finding that

sovereign immunity has been waived. 471 So. 2d at 6 (“We would

also emphasize that our holding here is applicable only to suits

on express, written contracts into which the state agency has

statutory authority to enter.”); see also Fin. Healthcare Assocs.,

Inc. v. Pub. Health Trust, 488 F. Supp. 2d 1231, 1236 (S.D. Fla.

2007) (“Clearly, the implied contract alleged in Count II is not

4
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an express written contract and therefore it fails to escape the

sovereign immunity bar as articulated in Pan–Am.”).

Here, Plaintiff concedes that he does not have a written

contract with the Collier County Sheriff’s Office. (Doc. #23, pp.

4-7.) Thus, the waiver of sovereign immunity articulated by the

Florida Supreme Court in Pan-Am and Miorelli is inapplicable and

Defendant is entitled to sovereign immunity from Plaintiff’s claim

for unjust enrichment.

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss Count III of Plaintiff’s

Complaint (Doc. #11) and Defendant’s Amended Motion to Dismiss

Count III of Plaintiff’s Complaint (Doc. #14) are DENIED as moot.

2. Defendant’s Motion to Dismiss Count IV of Plaintiff's

Amended Complaint (Doc. #22) is GRANTED and Count IV of the Amended

Complaint is dismissed with prejudice.

DONE AND ORDERED at Fort Myers, Florida, this 5th day of

May, 2015.

Copies: Counsel of record

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff(s),

v. Case No: 8:16-cv-00637-T-30TGW

BOARD OF TRUSTEES OF THE


UNIVERSITY OF SOUTH FLORIDA,

Defendant(s).
___________________________________/

CASE MANAGEMENT AND SCHEDULING ORDER

This cause came on for consideration concerning completion of discovery and the
scheduling of pretrial procedures and trial. The Court has considered the positions of the
parties as set forth in their Case Management Report, and hereby enters the following
scheduling and case management requirements whose provisions are very precise and shall
be strictly adhered to. Accordingly, it is ORDERED:

1. The parties are directed to meet the agreed upon terms and time limits set forth
in their Case Management Report, as noted below (including any exceptions deemed
appropriate by the Court):

Third-Party Joinder Cut-Off: May 2, 2016


Plaintiff(s) Expert Disclosure: September 6, 2016
Defendant(s) Expert Disclosure: October 3, 2016
Discovery Deadline: January 3, 2017
Dispositive Motion Deadline: February 1, 2017

2. Parties shall take heed that motions to amend any pleading or a motion for
continuance of any pretrial conference, hearing or trial filed after issuance of this Case
Management and Scheduling Order are disfavored. See Local Rules 3.05(c)(2)(E) and
3.05(c)(3)(D). If evidence arises during fact discovery that would support a motion to amend
a pleading, the moving party shall file a motion to amend within fourteen (14) days of

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learning of the evidence. Motions to amend after that fourteen (14) day window will be
governed by a good cause standard. See Fed. R. Civ. P. 16(b)(4).

3. A Pre-Trial Conference will be held before the Honorable James S. Moody,


Jr., United States Courthouse, 801 North Florida Avenue, Courtroom 17, Tampa, Florida
33602, on TUESDAY, MAY 2, 2017 AT 9:15 A.M. (Pre-trial conferences generally
last fifteen minutes.)

4. The parties shall comply with Local Rule 3.06 with respect to their joint Pre-
Trial Statement, which is due no later than seven (7) days before the date of the Pre-Trial
Conference.

5. The Pre-Trial Conference shall be attended by counsel who will act as lead
trial counsel in the case and who is vested with full authority to make and solicit disclosure
and agreements touching all matters pertaining to the trial.

6. This case is set for JURY TRIAL in Courtroom 17 of the United States
Courthouse, 801 N. Florida Avenue, Tampa, Florida, during the JUNE 2017, trial term
before the Honorable James S. Moody, Jr. (Trial terms run a calendar month.)

7. Any motions in limine shall be filed with the Clerk of Court no later than three
(3) weeks before the date of the Pre-Trial Conference. The parties are limited to filing only
one (1) motion in limine that includes each ground for the exclusion of evidence.

8. NO LATER than two (2) business days prior to the first day of trial, counsel
shall electronically file proposed voir dire, jury instructions, and verdict forms, serve copies
on opposing counsel, and provide the courtroom deputy with a copy for use by the Judge.
Counsel shall e-mail proposed jury instructions and verdict forms in either Word or Word
Perfect format to: chambers_flmd_moody@flmd.uscourts.gov.

(a) Trial Brief: The Court does not require Trial Briefs or Proposed
Findings of Fact and Conclusions of Law.

(b) If case is a JURY trial, the following shall be provided no later than
two (2) business days prior to the date on which trial is set to
commence:

(1) A concise (one paragraph preferably) joint or stipulated


statement of the nature of the action to be used in providing a
basic explanation of the case to the jury venire;

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(2) Proposed Voir Dire (the Court will conduct the voir dire and, in
addition to the usual more general questions, will without
initiation by counsel ask more particular questions suggested by
the nature of the case; counsel should, therefore, be selective in
the jury questions submitted to the Court for consideration);

(3) A complete set of all written Proposed Jury Instructions


(which shall bear a cover sheet with the complete style of the
case and appropriate heading designating the submitting party;
there shall be no more than one instruction per page and contain,
at the end of each such instruction, citation of authorities, if
any); they shall be sequentially numbered and party-identified
(e.g., Plaintiff's Requested Instruction No. 1); and

(4) Proposed Verdict Form

(c) If case is a NON-JURY trial, Proposed Findings of Fact and


Conclusions of Law are required only if the Judge requests them. If
they are requested, each shall be separately stated in numbered
paragraphs; Findings of Fact shall contain a detailed listing of the
relevant material facts the party intends to prove, in a simple, narrative
form; Conclusions of Law shall contain a full exposition of the legal
theories relied upon by counsel. At the end of trial, Counsel shall e-
mail the parties' Proposed Findings of Fact and Conclusions of Law in
Word or WordPerfect format to Chambers at:
chambers_flmd_moody@flmd.uscourts.gov.

DONE and ORDERED in Tampa, Florida on April 6, 2016.

Copies furnished to:


Counsel/Parties of Record
S:\Odd\2016\16-cv-637.CSO.order.wpd

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No: 8:16-cv-637-T-30TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

ORDER

THIS CAUSE is before the Court on Defendant's Motion to Dismiss and for More

Definite Statement (Dkt. 4), and Plaintiff’s Response in Opposition (Dkt. 6). The Court has

reviewed the pleadings, the complaint and its attachments, and the applicable law. As

specified below, the Court concludes that the motion should be denied.

FACTUAL BACKGROUND

In 2009, Plaintiff Nausheen Zainulabeddin enrolled in the Doctor of Medicine

Program at the University of South Florida in the hopes of becoming a medical doctor. Her

student tenure, however, was short-lived. According to allegations in Zainulabeddin’s

complaint, she failed her first-year final exams and was placed on academic probation; she

later failed two more courses, after which, in January 2012, she was dismissed from the

university for poor academic performance; she appealed her dismissal and lost. (Dkt. 2, pp.

8-13).
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Zainulabeddin’s complaint also alleges that, long before dismissing her, the

university had misread a disability diagnosis found in a neuropsychological exam

performed on Zainulabeddin and consequently failed to inform her of that disability—

specifically, Attention Deficit Hyperactivity Disorder (ADHD)—even though the exam

and the diagnosis were performed by a USF medical provider at the university’s behest.

Zainulabeddin also alleges that the university failed to provide her reasonable disability

accommodations; that USF, by failing to provide these accommodations, wrongfully

dismissed her from the medical school; that although USF readmitted her upon learning of

its failure to recognize her ADHD diagnosis, the university did not refund tuition that it

was contractually obligated to refund; and that USF wrongfully readmitted Zainulabeddin

in an “academic probation” status. (Dkt. 2, pp. 12-15).

Finally, Zainulabeddin’s complaint alleges that, after she was readmitted, USF

subjected her to disparate treatment and retaliation for her disability and for her being on

academic probation and a “readmitted” student. (Dkt. 2, pp. 19-20).

Zainulabeddin later received failing grades in two courses—Doctoring II and

Evidence Based Clinical Reasoning II. Because of these failures, on March 14, 2013, she

was again dismissed from the medical school. On May 28, 2013, she lost her appeal, and

USF issued a final notice of dismissal. (Dkt. 2, pp. 26-27).

On May 12, 2015, Zainulabeddin’s counsel wrote to the dean of the medical school,

outlining Zainulabeddin’s grievances against the university and providing the university

with pre-suit notice of a claim against it, as required by Florida Statutes Section 786.28(6).

(Dkt. 2-1, pp. 2-6). That letter referred to a university official’s negligent representation to

2
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Zainulabeddin that she was not in fact diagnosed with ADHD, which resulted in her

January 2012 dismissal. Zainulabeddin learned of this misrepresentation, the letter alleged,

in February 2012. (Id.)

Zainulabeddin filed this lawsuit in March 2016. The complaint contains six counts.

The first four are state law claims: Count 1 for breach of fiduciary duties; Count 2 for

negligent misrepresentation; Count 3 for breach of contract; and Count 4 for unjust

enrichment. Counts 5 and 6 are alleged violations of the Rehabilitation Act, 29 U.S.C. §

794 et seq. Count 5 alleges disparate treatment on the basis of a disability and Count 6

alleges that USF retaliated against Zainulabeddin for her having that disability.

DISCUSSION

Now USF moves to dismiss, with prejudice, Counts 1 through 4, and seeks a more

definite statement on Counts 5 and 6. USF argues that Counts 1 and 2 are time-barred by

Florida’s sovereign immunity statute, which states that lawsuits against a state agency are

only permitted if “the claimant presents the claim in writing to the appropriate agency . . .

within 3 years after such claim accrues.” Fla. Stat. § 768.28(6)(a). USF argues that Counts

3 and 4 must be dismissed because Zainulabeddin cannot identify a contract between her

and USF, and, without one, those Counts must fail.

As discussed below, these arguments lack the benefit of discovery and are thus

premature. For this reason, the Court rejects them. The Court also rejects USF’s arguments

for a more definite statement and therefore will not order Zainulabeddin to supply one.

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Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for

failure to state a claim on which relief can be granted. When reviewing a motion to dismiss,

courts must limit their consideration to the well-pleaded allegations, documents central to

or referred to in the complaint, and matters judicially noticed. La Grasta v. First Union

Securities, Inc., 358 F. 3d 840, 845 (11th Cir. 2004) (internal citations omitted).

Furthermore, they must accept all factual allegations contained in the complaint as true,

and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551

U.S. 89, 93-94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007).

Legal conclusions, however, “are not entitled to the assumption of truth.” Ashcroft

v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). In fact,

“conclusory allegations, unwarranted factual deductions or legal conclusions

masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d

1183, 1185 (11th Cir. 2003). To survive a motion to dismiss, a complaint must instead

contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible

on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks and citations omitted). This

plausibility standard is met when the plaintiff pleads enough factual content to allow the

court “to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (internal citations omitted).

I. Statute of Limitations

USF argues that Counts 1 and 2 must be dismissed because, according to

Zainulabeddin’s complaint and its attachments, she learned of USF’s breach of its fiduciary

4
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duties and its negligent misrepresentation in February 2012 but did not provide notice to

USF until May 2015, months after Florida’s agency-notice requirement had expired. (Dkt.

4, p. 3). Citing the Florida Supreme Court’s conclusion that this requirement is a condition

precedent to a lawsuit and must be “strictly construed,” Menendez v. N. Broward Hosp.

Dist., 537 So. 2d 89, 91 (Fla. 1988), USF argues that dismissal with prejudice is the

appropriate remedy. See id.

In related cases against other Florida state agencies, Florida courts and courts in this

district have agreed. See, e.g., Infante v. Whidden, No. 2:12-cv-41-FtM-29UAM, 2013 WL

5476022, *5-6 (M.D. Fla. Sept. 30, 2013); Noell v. White, No. 8:04-CV-2142-T-24TBM,

2005 WL 1126560, *7 (M.D. Fla. May 12, 2005); Doe ex rel. Doe’s Mother v. Sinrod, 90

So. 3d 852, 856-57 (Fla. 4th DCA 2012).

On the other hand, a statute of limitations bar is generally “an affirmative defense,

and . . . plaintiff[s] [are] not required to negate an affirmative defense in [their] complaint.”

La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal

citations and quotation marks omitted). At the motion to dismiss stage, a dismissal on

statute of limitations grounds is appropriate only if it is apparent from the face of the

complaint that the claim is time-barred. Id. (citing Carmichael v. Nissan Motor Acceptance

Corp., 291 F.3d 1278, 1279 (11th Cir. 2002). Courts dismissing actions under Florida’s

three-year agency-notice requirement do so on a finding that notice was not provided, and

clearly could not have been provided, in the allotted time. See, e.g., Infante, 2013 WL

5476022, at *7; Noell, 2005 WL 1126560, at *7 (“the Court notes that this defect cannot

be cured . . . .”).

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Here, Zainulabeddin’s complaint and her response to USF’s motion contain

allegations that raise the spectre of equitable estoppel. Specifically, Zainulabeddin refers

to USF’s decision to readmit Zainulabeddin after it had breached its fiduciary duty and

negligently misread her disability diagnosis. This decision, Zainulabeddin argues, caused

Zainulabeddin to forego legal action, which, in turn, precludes USF from invoking the

statute of limitations as a basis for dismissal.

Zainulabeddin’s argument prevails—for now at least. According to the Florida

Supreme Court, “[t]he preclusive effect of the statutes of limitation can be deflected by

various legal theories, including the doctrine of equitable estoppel.” Fla. Dept. of Health

and Rehabilitative Serv.’s v. S.A.P., 835 So. 2d 1091, 1096 (Fla. 2002). And “[t]he doctrine

of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused

another to believe in the existence of a certain state of things, and thereby induces him to

act on this belief injuriously to himself, or to alter his own previous condition to his injury.”

Id. at 1097 (internal quotations marks and citations omitted). Read in the light most

favorable to her, Zainulabeddin’s complaint makes plausible the conclusion that, by

readmitting her upon discovering her ADHD diagnosis, USF acted in a way to induce

Zainulabeddin to believe that USF would consider Zainulabeddin’s ADHD a

Rehabilitation Act-protected disability and treat her accordingly under the law. Her

complaint also makes plausible the conclusion that USF did not so act. This plausibility

prevents dismissal. See Iqbal, 556 U.S. at 678.

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Whether facts ultimately support Zainulabeddin’s argument is a different question,

one appropriate for the summary judgment stage. On Counts 1 and 2, the motion to dismiss

will be denied.

II. Stating a Claim for Breach of Contract

To state a claim for a breach of contract, a plaintiff must plead three elements, which

are (1) a valid contract, (2) a material breach, and (3) damages. Beck v. Lazard Freres &

Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citing Florida law). Counts 3 and 4 allege

that USF breached a contract with Zainulabeddin when it failed to fully refund tuition

Zainulabeddin paid for courses she failed or from which she withdrew.

USF seeks dismissal on the grounds that Zainulabeddin cannot identify a valid

written contract, but only a student handbook, which is not a contract under Florida law.

This argument, however, is only half correct. It is true that Florida law only waives

sovereign immunity for written, not implied contracts, Pan–Am Tobacco v. Dep’t of Corr.,

471 So. 2d 4, 5 (Fla. 1984), and that student handbooks generally do not, standing alone,

constitute written contracts. See Jallali v. Nova Southeastern University, Inc., 992 So. 2d

338, 342 (Fla. 4th DCA 2008).

But at this stage of the proceeding, Zainulabeddin does not need to identify a written

contract, but merely allege one. This she has plainly done. The complaint alleges that

“Zainulabeddin entered into a contractual relationship with the University of South

Florida,” one in which “[s]ome terms . . . [were] contained within the University of South

Florida College of Medicine Medical Student Handbook.” (Dkt. 2, p. 37). This factual

pleading is sufficient to survive a motion to dismiss. Whether the allegation will be

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supported by evidence is a question for summary judgment. On Counts 3 and 4, USF’s

motion will be denied.

Motion For More Definite Statement

Federal Rule of Civil Procedure 12(e) permits district courts to order a more definite

statement when a pleading “is so vague or ambiguous that the party cannot reasonably

prepare a response.” Such orders are appropriate for “shotgun” complaints, those multi-

count complaints that re-allege every allegation for every count, and by doing so, make “it

[] impossible to know which allegations of fact are intended to support which claim(s) for

relief.” Anderson v. District Bd. Of Trustees of Cent. Florida Community College, 77 F.3d

364, 366 (11th Cir. 1996).

Here, Zainulabeddin’s complaint is far from a model of efficiency, and Counts 5

and 6 do take the condemned tack of re-alleging all previous 125 allegations, many of

which bear no relation to those counts. Compare Dkt. 1, pp. 45, 50; with Cosby v. Lee

Cnty., 55 F. Supp. 1393, 1398 (M.D. Fla. 2014). (The Court further advises that the margins

in the complaint are needlessly large; one inch is sufficient.)

This does not make hers a shotgun complaint. Zainulabeddin saves Counts 5 and 6

by pleading additional allegations (some of which are redundancies) specifically germane

to those counts. Count 5, for example, contains an additional thirteen numbered paragraphs

and eight lettered sub-paragraphs, all of which address the essence of that count—disparate

treatment. Count 6 contains eighteen numbered paragraphs specific to that count—

retaliation. These allegations sufficiently direct USF to the allegations that are intended to

support those counts. Cf. Cosby, 55 F. Supp. at 1399.

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Indeed, while USF’s motion challenges the form and length of the complaint, and

cites cases generally condemning similar forms and lengths, it makes no argument for how

the complaint as pled would confuse USF’s answer; rather, it only notes that the complaint

presents “obvious difficulties.” (Dkt. 4, p. 9). So do all complaints, among them the

requirement of an answer. To grant a motion for a more definite statement in the absence

of genuine confusion would frustrate the very goals Rule 12(e) seeks to promote. See Fed.

R. Civ. P. 12(e); see also Anderson, 77 F. 3d at 367 (citing docket management as among

the goals underlying Rule 12(e)). Accordingly, USF’s motion for a more definite statement

will be denied.

It is ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Dismiss and For More Definite Statement (Dkt. 4) is

DENIED.

2. Defendant shall file an answer within fourteen (14) days of the entry of this

order.

DONE and ORDERED in Tampa, Florida, this 13th day of April, 2016.

Copies furnished to:


Counsel/Parties of Record

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

DEFENDANT’S ANSWER, DEFENSES, AND AFFIRMATIVE DEFENSES

COMES NOW Defendant, University of South Florida Board of Trustees, by and through

its undersigned counsel, pursuant to Rules 12 and 8 of the Federal Rules of Civil Procedure and

this Court’s Order dated April 13, 2016, and files its Answer, Defenses, and Affirmative Defenses,

stating as follows:

JURISDICTION AND VENUE

1. Defendant admits the allegations set forth in Paragraph No. 1 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff is making the specific claims

alleged within Paragraph No. 1 of Plaintiff’s Complaint; Defendant, however, denies that Plaintiff

is entitled to any relief whatsoever.

2. Defendant admits the allegations set forth in Paragraph No. 2 of Plaintiff’s

Complaint to the limited extent that this is an action for damages; Defendant, however, denies that

Plaintiff is entitled to any relief whatsoever.

3. Defendant denies the allegations set forth in Paragraph No. 3 of Plaintiff’s

Complaint.
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4. Defendant denies the allegations set forth in Paragraph No. 4 of Plaintiff’s

Complaint.

5. Defendant denies the allegations set forth in Paragraph No. 5 of Plaintiff’s

Complaint.

6. Defendant admits the allegations set forth in Paragraph No. 6 of Plaintiff’s

Complaint to the limited extent that Plaintiff attached a letter dated May 12, 2015, as Exhibit A to

her Complaint. Defendant denies all other allegations set forth in Paragraph No. 6 of her

Complaint.

THE PARTIES

7. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 7 of Plaintiff’s Complaint, and, accordingly, denies same.

8. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 8 of Plaintiff’s Complaint, and, accordingly, denies same.

9. Defendant admits the allegations set forth in Paragraph No. 9 of Plaintiff’s

Complaint.

10. Defendant admits the allegations set forth in Paragraph No. 10 of Plaintiff’s

Complaint.

FACTS

11. Defendant admits the allegations set forth in Paragraph No. 11 of Plaintiff’s

Complaint.

12. Defendant admits the allegations set forth in Paragraph No. 12 of Plaintiff’s

Complaint.

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13. Defendant admits the allegations set forth in the first sentence of Paragraph No. 13

of Plaintiff’s Complaint. Defendant presently lacks sufficient information to either admit or deny

the remaining allegations set forth in Paragraph No. 13 of Plaintiff’s Complaint, and, accordingly,

denies same.

14. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 14 of Plaintiff’s Complaint, and, accordingly, denies same.

15. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 15 of Plaintiff’s Complaint, and, accordingly, denies same.

16. Defendant denies the allegations set forth in Paragraph No. 16 of Plaintiff’s

Complaint.

17. Defendant admits the allegations set forth in Paragraph No. 17 of Plaintiff’s

Complaint to the limited extent that Dr. Fanous prescribed Plaintiff Adderall. Defendant presently

lacks sufficient information to either admit or deny the allegations set forth in the remaining

portions of Paragraph No. 17 of Plaintiff’s Complaint, and, accordingly, denies same.

18. Defendant admits the allegations set forth in Paragraph No. 18 of Plaintiff’s

Complaint.

19. Defendant admits the allegations set forth in Paragraph No. 19 of Plaintiff’s

Complaint.

20. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in the first sentence of Paragraph No. 20 of Plaintiff’s Complaint, and,

accordingly, denies same. Defendant denies all other allegations set forth in Paragraph No. 20 of

her Complaint.

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21. Defendant denies the allegations set forth in Paragraph No. 21 of Plaintiff’s

Complaint.

22. Defendant denies the opening clause of the first sentence of Paragraph No. 22 of

Plaintiff’s Complaint, which specifically states, “Based on Dr. Specter’s advice.”

23. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 23 of Plaintiff’s Complaint, and, accordingly, denies same.

24. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 24 of Plaintiff’s Complaint, and, accordingly, denies same.

25. Defendant denies the allegations set forth in Paragraph No. 25 of Plaintiff’s

Complaint.

26. Defendant admits the allegations set forth in the first sentence of Paragraph No. 26

of Plaintiff’s Complaint. Defendant denies all other allegations set forth in Paragraph No. 26 of

her Complaint.

27. Defendant denies the allegations set forth in Paragraph No. 27 of Plaintiff’s

Complaint.

28. Defendant admits the allegations set forth in Paragraph No. 28 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff accurately quoted from the

documents attached as Exhibit B to Plaintiff’s Complaint. Defendant denies all other allegations

set forth in Paragraph No. 28 of Plaintiff’s Complaint.

29. Defendant denies the allegations set forth in Paragraph No. 29 of Plaintiff’s

Complaint.

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30. Defendant denies the allegations set forth in the first sentence of Paragraph No. 30

of Plaintiff’s Complaint. Defendant admits the remaining allegations set forth in Paragraph No. 30

of Plaintiff’s Complaint.

31. Defendant admits the allegations set forth in Paragraph No. 31 of Plaintiff’s

Complaint.

32. Defendant denies the allegations set forth in Paragraph No. 32 of Plaintiff’s

Complaint.

33. Defendant admits the allegations set forth in Paragraph No. 33 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff underwent an examination by Dr.

Mike R. Schoenberg. Defendant denies all other allegations set forth in Paragraph No. 33 of

Plaintiff’s Complaint.

34. Defendant admits the allegations set forth in the first sentence of Paragraph No. 34

of Plaintiff’s Complaint. Defendant admits the allegations set forth in the second sentence of

Paragraph No. 34 of Plaintiff’s Complaint to the limited extent that the results of Plaintiff’s

examination were provided to Dr. Specter. Defendant denies the remaining allegations set forth in

Paragraph No. 34 of Plaintiff’s Complaint.

35. Defendant admits the allegations set forth in Paragraph No. 35 of Plaintiff’s

Complaint.

36. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in the first sentence of Paragraph No. 36 of Plaintiff’s Complaint, and,

accordingly, denies same. Defendant denies the remaining allegations set forth in Paragraph No.

36 of Plaintiff’s Complaint.

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37. Defendant admits the allegations set forth in Paragraph No. 37 of Plaintiff’s

Complaint.

38. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in the first sentence of Paragraph No. 38 of Plaintiff’s Complaint, and,

accordingly, denies same. Defendant admits the remaining allegations set forth in Paragraph No.

38 of Plaintiff’s Complaint.

39. Defendant admits the allegations set forth in Paragraph No. 39 of Plaintiff’s

Complaint.

40. Defendant admits the allegations set forth in the first sentence of Paragraph No. 40

of Plaintiff’s Complaint to the limited extent that Plaintiff met with Dr. Specter and asked him if

he had received the results of Plaintiff’s testing; Defendant, however, presently lacks sufficient

information to either admit or deny the date of that meeting, and therefore denies Plaintiff’s alleged

date of same. Defendant denies the remaining allegations set forth in Paragraph No. 40 of

Plaintiff’s Complaint.

41. Defendant admits the allegations set forth in Paragraph No. 41 of Plaintiff’s

Complaint to the limited extent of acknowledging that Dr. Schoenberg’s original report was dated

December 15, 2010. Defendant denies all remaining allegations set forth in Paragraph No. 41 of

Plaintiff’s Complaint.

42. Defendant denies the allegations set forth in Paragraph No. 42 of Plaintiff’s

Complaint.

43. Defendant denies the allegations set forth in Paragraph No. 43 of Plaintiff’s

Complaint.

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44. Defendant denies the allegations set forth in Paragraph No. 44 of Plaintiff’s

Complaint.

45. Defendant denies the allegations set forth in Paragraph No. 45 of Plaintiff’s

Complaint.

46. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 46 of Plaintiff’s Complaint, and, accordingly, denies same.

47. Defendant denies the opening clause of the first sentence of Paragraph No. 47 of

Plaintiff’s Complaint, which specifically states, “Based on the advice from Dr. Specter.”

Defendant presently lacks sufficient information to either admit or deny the remaining allegations

set forth in Paragraph No. 47 of Plaintiff’s Complaint, and, accordingly, denies same.

48. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 48 of Plaintiff’s Complaint, and, accordingly, denies same.

49. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 49 of Plaintiff’s Complaint, and, accordingly, denies same.

50. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 50 of Plaintiff’s Complaint, and, accordingly, denies same.

51. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 51 of Plaintiff’s Complaint, and, accordingly, denies same.

52. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 52 of Plaintiff’s Complaint, and, accordingly, denies same.

53. Defendant denies the allegations set forth in Paragraph No. 53 of Plaintiff’s

Complaint.

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54. Defendant denies the opening clause of the first sentence of Paragraph No. 54 of

Plaintiff’s Complaint, which specifically states, “Based on this interaction with Dr. Specter.”

Defendant presently lacks sufficient information to either admit or deny the remaining allegations

set forth in Paragraph No. 54 of Plaintiff’s Complaint, and, accordingly, denies same.

55. Defendant denies the portion of Paragraph No. 55 of Plaintiff’s Complaint, which

specifically states, “Dr. Specter’s representations.” Defendant presently lacks sufficient

information to either admit or deny the remaining allegations set forth in Paragraph No. 47 of

Plaintiff’s Complaint, and, accordingly, denies same.

56. Defendant admits the allegations set forth in Paragraph No. 56 of Plaintiff’s

Complaint.

57. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 57 of Plaintiff’s Complaint, and, accordingly, denies same.

58. Defendant admits the allegations set forth in Paragraph No. 58 of Plaintiff’s

Complaint.

59. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 59 of Plaintiff’s Complaint, and, accordingly, denies same.

60. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 60 of Plaintiff’s Complaint, and, accordingly, denies same.

61. Defendant denies the allegations set forth in Paragraph No. 61 of Plaintiff’s

Complaint.

62. Defendant denies the allegation contained in the opening clause of Paragraph No.

62 of Plaintiff’s Complaint, which specifically states, “To correct his mistake.” Defendant admits

the remaining allegations set forth in Paragraph No. 62 of Plaintiff’s Complaint.

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63. Defendant admits the allegations set forth in Paragraph No. 63 of Plaintiff’s

Complaint to the limited extent that on February 21, 2012, Defendant reversed its earlier decision

to dismiss Plaintiff from the College of Medicine. Defendant denies all other allegations set forth

in Paragraph No. 63 of Plaintiff’s Complaint.

64. Defendant admits the allegations set forth in Paragraph No. 64 of Plaintiff’s

Complaint.

65. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 65 of Plaintiff’s Complaint, and, accordingly, denies same.

66. Defendant denies the allegations set forth in Paragraph No. 66 of Plaintiff’s

Complaint to the limited extent that Plaintiff claims, “[a]s of February 21, 2012,” to attended the

Doctor of Medicine program for “three years.” Defendant admits the remaining allegations of

Paragraph No. 66 of Plaintiff’s Complaint.

67. Defendant denies the allegations set forth in Paragraph No. 67 of Plaintiff’s

Complaint.

68. Defendant denies the allegations set forth in Paragraph No. 68 of Plaintiff’s

Complaint.

69. Defendant denies the allegations set forth in Paragraph No. 69 of Plaintiff’s

Complaint.

70. Defendant denies the allegations set forth in Paragraph No. 70 of Plaintiff’s

Complaint.

71. Defendant admits the allegations set forth in Paragraph No. 71 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff accurately quotes language from

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the documents attached as Exhibit B to her Complaint. Defendant denies all other allegations set

forth in Paragraph No. 71 of Plaintiff’s Complaint.

72. Defendant denies the allegations set forth in Paragraph No. 72 of Plaintiff’s

Complaint.

73. Defendant denies the allegations set forth in Paragraph No. 73 of Plaintiff’s

Complaint.

74. Defendant denies the allegations set forth in Paragraph No. 74 of Plaintiff’s

Complaint.

75. Defendant admits the allegations set forth in Paragraph No. 75 of Plaintiff’s

Complaint.

76. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 76 of Plaintiff’s Complaint, and, accordingly, denies same.

77. Defendant denies the allegations set forth in Paragraph No. 77 of Plaintiff’s

Complaint to the limited extent that the e-mail dated July 20, 2013 (attached as Exhibit E to

Plaintiff’s Complaint) did not necessarily constitute a final denial of Plaintiff’s request for

reimbursement. Defendant admits all other allegations set forth in Paragraph No. 77 of Plaintiff’s

Complaint.

78. Defendant admits the allegations set forth in Paragraph No. 78 of Plaintiff’s

Complaint.

79. Defendant denies the allegations set forth in Paragraph No. 79 of Plaintiff’s

Complaint.

80. Defendant denies the allegations set forth in Paragraph No. 80 of Plaintiff’s

Complaint.

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81. Defendant admits the allegations set forth in Paragraph No. 81 of Plaintiff’s

Complaint.

82. Defendant’s denies the allegations set forth in Paragraph 82 of Plaintiff’s Complaint

to the limited extent that Plaintiff sets forth a legal conclusion that she suffers from a disability.

Defendant admits the remaining allegations set forth in Paragraph No. 82 of Plaintiff’s Complaint.

83. Defendant denies the allegations set forth in Paragraph No. 83 of Plaintiff’s

Complaint.

84. Defendant denies the allegations set forth in Paragraph No. 84 of Plaintiff’s

Complaint.

85. Defendant denies the allegations set forth in Paragraph No. 85 of Plaintiff’s

Complaint.

86. Defendant denies the allegations set forth in Paragraph No. 86 of Plaintiff’s

Complaint.

87. Defendant denies the allegations set forth in Paragraph No. 87 of Plaintiff’s

Complaint.

88. Defendant denies the allegations set forth in Paragraph No. 88 of Plaintiff’s

Complaint.

89. Defendant denies the allegations set forth in Paragraph No. 89 of Plaintiff’s

Complaint.

90. Defendant denies the allegations set forth in Paragraph No. 90 of Plaintiff’s

Complaint.

91. Defendant denies the allegations set forth in Paragraph No. 91 of Plaintiff’s

Complaint.

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92. Defendant denies the allegations set forth in Paragraph No. 92 of Plaintiff’s

Complaint.

93. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 93 of Plaintiff’s Complaint, and, accordingly, denies same.

94. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 94 of Plaintiff’s Complaint, and, accordingly, denies same.

95. Defendant denies the allegations set forth in Paragraph No. 95 of Plaintiff’s

Complaint.

96. Defendant denies the allegations set forth in Paragraph No. 96 of Plaintiff’s

Complaint.

97. Defendant denies the allegations set forth in Paragraph No. 97 of Plaintiff’s

Complaint.

98. Defendant denies the allegations set forth in Paragraph No. 98 of Plaintiff’s

Complaint.

99. Defendant denies the allegations set forth in Paragraph No. 99 of Plaintiff’s

Complaint.

100. Defendant denies the allegations set forth in Paragraph No. 100 of Plaintiff’s

Complaint.

101. Defendant denies the allegations set forth in Paragraph No. 101 of Plaintiff’s

Complaint.

102. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 102 of Plaintiff’s Complaint, and, accordingly, denies same.

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103. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 103 of Plaintiff’s Complaint, and, accordingly, denies same.

104. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 104 of Plaintiff’s Complaint, and, accordingly, denies same.

105. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 105 of Plaintiff’s Complaint, and, accordingly, denies same.

106. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 106 of Plaintiff’s Complaint, and, accordingly, denies same.

107. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 107 of Plaintiff’s Complaint, and, accordingly, denies same.

108. Defendant denies the allegations set forth in Paragraph No. 108 of Plaintiff’s

Complaint.

109. Defendant denies the allegations set forth in Paragraph No. 109 of Plaintiff’s

Complaint.

110. Defendant admits the allegations set forth in the first sentence of Paragraph No. 110

of Plaintiff’s Complaint. Defendant denies the remaining allegations set forth in the Paragraph No.

110 of Plaintiff’s Complaint.

111. Defendant denies the allegations set forth in Paragraph No. 111 of Plaintiff’s

Complaint.

112. Defendant denies the allegations set forth in Paragraph No. 112 of Plaintiff’s

Complaint.

113. Defendant denies the allegations set forth in Paragraph No. 113 of Plaintiff’s

Complaint.

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114. Defendant denies the allegations set forth in Paragraph No. 114 of Plaintiff’s

Complaint.

115. Defendant denies the allegations set forth in Paragraph No. 115 of Plaintiff’s

Complaint.

116. Defendant admits the allegations set forth in Paragraph No. 116 of Plaintiff’s

Complaint.

117. Defendant denies the allegations set forth in Paragraph No. 117 of Plaintiff’s

Complaint.

118. Defendant denies the allegations set forth in Paragraph No. 118 of Plaintiff’s

Complaint.

119. Defendant admits the allegations set forth in Paragraph No. 119 of Plaintiff’s

Complaint.

120. Defendant admits the allegations set forth in Paragraph No. 120 of Plaintiff’s

Complaint to the limited extent that Plaintiff received “U” grades in the Doctoring II and Evidence

Based Clinical Reasoning II courses. Defendant denies all other allegations set forth in Paragraph

No. 120 of Plaintiff’s Complaint.

121. Defendant denies the allegations set forth in Paragraph No. 121 of Plaintiff’s

Complaint.

122. Defendant admits the allegations set forth in Paragraph No. 122 of Plaintiff’s

Complaint.

123. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 123 of Plaintiff’s Complaint, and, accordingly, denies same.

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124. Defendant denies the allegations set forth in Paragraph No. 124 of Plaintiff’s

Complaint.

125. Defendant denies the allegations set forth in Paragraph No. 125 of Plaintiff’s

Complaint.

COUNT I: BREACH OF FIDUCIERY DUTIES

126. Defendant restates and incorporates by reference herein its specific responses to

Paragraph Nos. 1 through 125 of Plaintiff’s Complaint, as set forth above.

127. Defendant denies the allegations set forth in Paragraph No. 127 of Plaintiff’s

Complaint.

128. Defendant admits the allegations set forth in Paragraph No. 128 of Plaintiff’s

Complaint to the limited extent that Plaintiff failed her first year of medical school. Defendant

denies the remaining allegations set forth in Paragraph No. 128 of Plaintiff’s Complaint.

129. Defendant denies the allegations set forth in Paragraph No. 129 of Plaintiff’s

Complaint.

130. Defendant denies the allegations set forth in Paragraph No. 130 of Plaintiff’s

Complaint.

131. Defendant denies the allegations set forth in Paragraph No. 131 of Plaintiff’s

Complaint.

132. Defendant denies the allegations set forth in Paragraph No. 132 (including

subparagraphs a. through d.) of Plaintiff’s Complaint.

133. Defendant denies the allegations set forth in Paragraph No. 133 of Plaintiff’s

Complaint.

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134. Defendant denies the allegations set forth in Paragraph No. 134 of Plaintiff’s

Complaint.

135. Defendant denies the allegations set forth in Paragraph No. 135 of Plaintiff’s

Complaint.

136. Defendant denies the allegations set forth in Paragraph No. 136 of Plaintiff’s

Complaint.

137. Defendant denies the allegations set forth in Paragraph No. 137 of Plaintiff’s

Complaint.

138. Defendant denies the allegations set forth in Paragraph No. 138 of Plaintiff’s

Complaint.

139. Defendant denies the allegations set forth in Paragraph No. 139 of Plaintiff’s

Complaint.

140. Defendant denies the allegations set forth in Paragraph No. 140 of Plaintiff’s

Complaint.

141. Defendant denies that Plaintiff is entitled to any of the relief she seeks in the

“Wherefore” clause following Paragraph 140 of Plaintiff’s Complaint, including sections a.

through d.

COUNT II: NEGLIGENT MISREPRESENTATION

142. Defendant restates and incorporates by reference herein its specific responses to

Paragraph Nos. 1 through 125 of Plaintiff’s Complaint, as set forth above.

143. Defendant denies the allegations set forth in Paragraph No. 142 of Plaintiff’s

Complaint.

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144. Defendant denies the allegations set forth in Paragraph No. 143 of Plaintiff’s

Complaint.

145. Defendant denies the allegations set forth in Paragraph No. 144 (including

subparagraphs a. through d.) of Plaintiff’s Complaint.

146. Defendant denies the allegations set forth in Paragraph No. 145 of Plaintiff’s

Complaint.

147. Defendant denies the allegations set forth in Paragraph No. 146 of Plaintiff’s

Complaint.

148. Defendant denies the allegations set forth in Paragraph No. 147 of Plaintiff’s

Complaint.

149. Defendant denies the allegations set forth in Paragraph No. 148 of Plaintiff’s

Complaint.

150. Defendant denies the allegations set forth in Paragraph No. 149 of Plaintiff’s

Complaint.

151. Defendant denies the allegations set forth in Paragraph No. 150 of Plaintiff’s

Complaint.

152. Defendant denies the allegations set forth in Paragraph No. 151 of Plaintiff’s

Complaint.

153. Defendant denies the allegations set forth in Paragraph No. 152 of Plaintiff’s

Complaint.

154. Defendant denies the allegations set forth in Paragraph No. 153 of Plaintiff’s

Complaint.

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155. Defendant denies the allegations set forth in Paragraph No. 154 of Plaintiff’s

Complaint.

156. Defendant denies the allegations set forth in Paragraph No. 155 of Plaintiff’s

Complaint.

157. Defendant denies the allegations set forth in Paragraph No. 156 of Plaintiff’s

Complaint.

158. Defendant denies the allegations set forth in Paragraph No. 157 of Plaintiff’s

Complaint.

159. Defendant denies that Plaintiff is entitled to any of the relief she seeks in the

“Wherefore” clause following Paragraph 157 of Plaintiff’s Complaint, including sections a.

through d.

COUNT III: BREACH OF CONTRACT

160. Defendant restates and incorporates by reference herein its specific responses to

Paragraph Nos. 1 through 125 of Plaintiff’s Complaint, as set forth above.

161. Defendant denies the allegations set forth in Paragraph No. 159 of Plaintiff’s

Complaint.

162. Defendant denies the allegations set forth in Paragraph No. 160 of Plaintiff’s

Complaint.

163. Defendant denies the allegations set forth in Paragraph No. 161 of Plaintiff’s

Complaint.

164. Defendant admits the allegations set forth in Paragraph No. 162 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff accurately quotes language from

18
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the documents attached as Exhibit B to Plaintiff’s Complaint. Defendant denies all other

allegations set forth in Paragraph No. 162 of Plaintiff’s Complaint.

165. Defendant denies the allegations set forth in Paragraph No. 163 of Plaintiff’s

Complaint.

166. Defendant denies the allegations set forth in Paragraph No. 164 of Plaintiff’s

Complaint.

167. Defendant denies the allegations set forth in Paragraph No. 165 of Plaintiff’s

Complaint.

168. Defendant denies the allegations set forth in Paragraph No. 166 of Plaintiff’s

Complaint.

169. Defendant denies the allegations set forth in Paragraph No. 167 of Plaintiff’s

Complaint.

170. Defendant denies the allegations set forth in Paragraph No. 168 of Plaintiff’s

Complaint.

171. Defendant denies the allegations set forth in Paragraph No. 169 of Plaintiff’s

Complaint.

172. Defendant admits the allegations set forth in Paragraph No. 170 of Plaintiff’s

Complaint.

173. Defendant denies the allegations set forth in Paragraph No. 171 of Plaintiff’s

Complaint.

174. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 174 of Plaintiff’s Complaint, and, accordingly, denies same.

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175. Defendant denies the allegations set forth in Paragraph No. 173 of Plaintiff’s

Complaint.

176. Defendant denies that Plaintiff is entitled to any of the relief she seeks in the

“Wherefore” clause following Paragraph 173 of Plaintiff’s Complaint, including sections a.

through c.

COUNT IV: UNJUST ENRICHMENT

177. Defendant restates and incorporates by reference herein its specific responses to

Paragraph Nos. 1 through 67, 72, and 74 through 125 of Plaintiff’s Complaint, as set forth above.

178. Defendant admits the allegations set forth in Paragraph No. 175 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff is pleading Count IV in the

alternative to Count III; Defendant, however, denies that Plaintiff is entitled to any relief

whatsoever under Count III or IV of her Complaint.

179. Defendant denies the allegations set forth in Paragraph No. 176 of Plaintiff’s

Complaint.

180. Defendant denies the allegations set forth in Paragraph No. 177 of Plaintiff’s

Complaint.

181. Defendant denies the allegations set forth in Paragraph No. 178 of Plaintiff’s

Complaint.

182. Defendant denies the allegations set forth in Paragraph No. 179 of Plaintiff’s

Complaint.

183. Defendant admits the allegations set forth in Paragraph No. 180 of Plaintiff’s

Complaint to the limited extent of acknowledging that Plaintiff accurately quotes language from

20
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the documents attached as Exhibit B to Plaintiff’s Complaint. Defendant denies all other

allegations set forth in Paragraph No. 180 of Plaintiff’s Complaint.

184. Defendant denies the allegations set forth in Paragraph No. 181 of Plaintiff’s

Complaint.

185. Defendant denies the allegations set forth in Paragraph No. 182 of Plaintiff’s

Complaint.

186. Defendant denies the allegations set forth in Paragraph No. 183 of Plaintiff’s

Complaint.

187. Defendant denies the allegations set forth in Paragraph No. 184 of Plaintiff’s

Complaint.

188. Defendant denies the allegations set forth in Paragraph No. 185 of Plaintiff’s

Complaint.

189. Defendant denies the allegations set forth in Paragraph No. 186 of Plaintiff’s

Complaint.

190. Defendant admits the allegations set forth in Paragraph No. 187 of Plaintiff’s

Complaint.

191. Defendant denies the allegations set forth in Paragraph No. 188 of Plaintiff’s

Complaint.

192. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 189 of Plaintiff’s Complaint, and, accordingly, denies same.

193. Defendant denies the allegations set forth in Paragraph No. 190 of Plaintiff’s

Complaint.

21
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194. Defendant denies the allegations set forth in Paragraph No. 191 of Plaintiff’s

Complaint.

195. Defendant denies that Plaintiff is entitled to any of the relief she seeks in the

“Wherefore” clause following Paragraph 191 of Plaintiff’s Complaint, including sections a.

through d.

COUNT V: DISABILITY DISCRIMINATION

196. Defendant restates and incorporates by reference herein its specific responses to

Paragraph Nos. 1 through 125 of Plaintiff’s Complaint, as set forth above.

197. Defendant denies the allegations set forth in Paragraph No. 193 (including

subparagraphs a. through h.) of Plaintiff’s Complaint.

198. Defendant denies the allegations set forth in Paragraph No. 194 of Plaintiff’s

Complaint.

199. Defendant denies the allegations set forth in Paragraph No. 195 of Plaintiff’s

Complaint.

200. Defendant denies the allegations set forth in Paragraph No. 196 of Plaintiff’s

Complaint.

201. Defendant denies the allegations set forth in Paragraph No. 197 of Plaintiff’s

Complaint.

202. Defendant denies the allegations set forth in Paragraph No. 198 of Plaintiff’s

Complaint.

203. Defendant denies the allegations set forth in Paragraph No. 199 of Plaintiff’s

Complaint.

22
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204. Defendant denies the allegations set forth in Paragraph No. 200 of Plaintiff’s

Complaint.

205. Defendant denies the allegations set forth in Paragraph No. 201 of Plaintiff’s

Complaint.

206. Defendant denies the allegations set forth in Paragraph No. 202 of Plaintiff’s

Complaint.

207. Defendant denies the allegations set forth in Paragraph No. 203 of Plaintiff’s

Complaint.

208. Defendant denies the allegations set forth in Paragraph No. 204 of Plaintiff’s

Complaint.

209. Defendant denies that Plaintiff is entitled to any of the relief she seeks in the

“Wherefore” clause following Paragraph 204 of Plaintiff’s Complaint, including sections a.

through d.

COUNT VI: RETALIATION ON THE BASIS OF DISABILITY

210. Defendant restates and incorporates by reference herein its specific responses to

Paragraph Nos. 1 through 125 of Plaintiff’s Complaint, as set forth above.

211. Defendant denies the allegations set forth in Paragraph No. 206 of Plaintiff’s

Complaint.

212. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 207 of Plaintiff’s Complaint, and, accordingly, denies same.

213. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 208 of Plaintiff’s Complaint, and, accordingly, denies same.

23
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214. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 209 of Plaintiff’s Complaint, and, accordingly, denies same.

215. Defendant presently lacks sufficient information to either admit or deny the

allegations set forth in Paragraph No. 210 of Plaintiff’s Complaint, and, accordingly, denies same.

216. Defendant admits the allegations set forth in Paragraph No. 211 of Plaintiff’s

Complaint.

217. Defendant denies the allegations set forth in Paragraph No. 212 of Plaintiff’s

Complaint.

218. Defendant denies the allegations set forth in Paragraph No. 213 of Plaintiff’s

Complaint.

219. Defendant denies the allegations set forth in Paragraph No. 214 of Plaintiff’s

Complaint.

220. Defendant admits the allegations set forth in Paragraph No. 215 of Plaintiff’s

Complaint.

221. Defendant denies the allegations set forth in Paragraph No. 216 of Plaintiff’s

Complaint.

222. Defendant denies the allegations set forth in Paragraph No. 217 of Plaintiff’s

Complaint.

223. Defendant denies the allegations set forth in Paragraph No. 218 of Plaintiff’s

Complaint.

224. Defendant admits the allegations set forth in Paragraph No. 219 of Plaintiff’s

Complaint.

24
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225. Defendant denies the allegations set forth in Paragraph No. 220 of Plaintiff’s

Complaint.

226. Defendant denies the allegations set forth in Paragraph No. 221 of Plaintiff’s

Complaint.

227. Defendant denies the allegations set forth in Paragraph No. 222 of Plaintiff’s

Complaint.

228. Defendant denies that Plaintiff is entitled to any of the relief she seeks in the

“Wherefore” clause following Paragraph 222 of Plaintiff’s Complaint, including sections a.

through f.

229. Defendant acknowledges that Plaintiff has made a demand for a jury trial. As to the

propriety of such demand, however, the demand set forth under the “Demand for Jury Trial”

section of Plaintiff’s Complaint is denied.

230. Defendant denies any and all claims set forth in Plaintiff’s Complaint that have not

been specifically admitted above and demands strict proof thereof.

DEFENSES AND AFFIRMATIVE DEFENSES

In addition to the foregoing admissions and denials, Defendant asserts the following

defenses and affirmative defenses:

FIRST DEFENSE

Plaintiff has failed to state a claim upon which relief may be granted.

SECOND DEFENSE

To the extent that Plaintiff has failed to satisfy the conditions precedent that are necessary

to maintain her claims and/or failed to fully exhaust her administrative remedies, all such claims

are barred.

25
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THIRD DEFENSE

Plaintiff’s claims are barred by the applicable statute of limitations.

FOURTH DEFENSE

Defendant and/or its agents did not owe Plaintiff a fiduciary duty, either express or implied.

FIFTH DEFENSE

Even assuming, arguendo, that Defendant and/or its agents did owe Plaintiff any fiduciary

duties (a contention Defendant categorically denies), Defendant and/or its agents did not breach

any such fiduciary duties.

SIXTH DEFENSE

Even assuming, arguendo, that Defendant and/or its agents did owe Plaintiff any fiduciary

duties (a contention Defendant categorically denies) and Defendant and/or its agents did breach

any such fiduciary duties (a contention Defendant categorically denies), any such breach did not

proximately cause any damages to Plaintiff.

SEVENTH DEFENSE

Defendant and/or its agents did not misrepresent any material facts to Plaintiff.

EIGHTH DEFENSE

Even assuming, arguendo, that any material facts were misrepresented to Plaintiff (a

contention Defendant categorically denies), any such misrepresentation was not undertaken

knowingly or under circumstances in which the alleged misrepresentor should have or ought to

have known of the falsity of the information misrepresented.

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NINTH DEFENSE

Even assuming, arguendo, that any material facts were misrepresented to Plaintiff (a

contention Defendant categorically denies), any such misrepresentation was not undertaken with

the intent to induce Plaintiff to act thereon.

TENTH DEFENSE

Even assuming, arguendo, that any material facts were misrepresented to Plaintiff (a

contention Defendant categorically denies), Plaintiff unjustifiably relied on such

misrepresentation.

ELEVENTH DEFENSE

Even assuming, arguendo, that any material facts were misrepresented to Plaintiff (a

contention Defendant categorically denies), any such misrepresentation did not proximately cause

any damages to Plaintiff.

TENTH DEFENSE

Plaintiff’s breach of contract claim is barred by the doctrine of accord and satisfaction.

ELEVENTH DEFENSE

Plaintiff’s breach of contract claim fails for lack of consideration.

TWELFTH DEFENSE

Plaintiff’s breach of contract claim fails because there was no meeting of the minds

between the parties, and Defendant’s student handbook specifically states that it is not a contract.

THIRTEENTH DEFENSE

Even assuming, arguendo, that Plaintiff had a contract with Defendant (a contention

Defendant categorically denies), Plaintiff’s breach of contract claim fails based on the statute of

frauds because there is no written agreement between the parties.

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FOURTEENTH DEFENSE

Even assuming, arguendo, that Plaintiff had a contract with Defendant (a contention

Defendant categorically denies), Plaintiff’s breach of contract claim fails because Defendant fully

performed its obligations under any such contract.

FIFTEENTH DEFENSE

Even assuming, arguendo, that Plaintiff had a contract with Defendant (a contention

Defendant categorically denies), Plaintiff’s breach of contract claim fails because Defendant was

legally excused from performing its obligations.

SIXTEENTH DEFENSE

Even assuming, arguendo, that Plaintiff had a contract with Defendant (a contention

Defendant categorically denies), Plaintiff’s breach of contract claim fails because no alleged

breach by Defendant was material.

SEVENTEENTH DEFENSE

Even assuming, arguendo, that Plaintiff had a contract with Defendant and that Defendant

breached such contract (both of which being contentions Defendant categorically denies), Plaintiff

suffered no damages as a result of any such breach.

EIGHTEENTH DEFENSE

Plaintiff’s unjust enrichment claim fails because Plaintiff conferred no benefit on

Defendant.

NINETEENTH DEFENSE

Plaintiff’s unjust enrichment claim fails because, even assuming, arguendo, that Plaintiff

conferred a benefit on Defendant, Defendant had no knowledge of any such benefit.

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TWENTIETH DEFENSE

Plaintiff’s unjust enrichment claim fails because, even assuming, arguendo, that Plaintiff

conferred a benefit on Defendant, Defendant did not accept or retain any such benefit.

TWENTY-FIRST DEFENSE

Plaintiff’s unjust enrichment claim fails because, even assuming, arguendo, that Plaintiff

conferred a benefit on Defendant, it would not be inequitable for Defendant to retain any such

benefit.

TWENTY-SECOND DEFENSE

Plaintiff’s unjust enrichment claim is barred by the doctrine of unclean hands.

TWENTY-THIRD DEFENSE

Plaintiff’s unjust enrichment claim is barred because Plaintiff has an adequate remedy at

law.

TWENTY-FOURTH DEFENSE

Plaintiff’s claims are barred by the doctrine of sovereign immunity.

TWENTY-FIFTH DEFENSE

Plaintiff’s claims are subject to the damages caps set forth in Section 768.28, Florida

Statutes.

TWENTY-SIXTH DEFENSE

Plaintiff failed to engage in any protected activity.

TWENTY-SEVENTH DEFENSE

Any and all actions taken by Defendant with respect to Plaintiff were undertaken in good

faith for legitimate business reasons wholly unrelated to Plaintiff’s alleged disability.

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TWENTY-EIGHTH DEFENSE

Any and all actions taken by Defendant with respect to Plaintiff were undertaken in good

faith for legitimate business reasons wholly unrelated to Plaintiff’s alleged actual or perceived

disability or any alleged protected activity in which Plaintiff engaged.

TWENTY-NINTH DEFENSE

Even assuming, arguendo, that this Court were to conclude that Plaintiff’s actual or

perceived disability was a motivating factor in any adverse action Defendant took with respect to

Plaintiff (a contention Defendant categorically denies), Defendant would have taken the same

adverse action irrespective of any actual or perceived disability.

THIRTIETH DEFENSE

To the extent Plaintiff claims to have suffered any mental injuries (a contention Defendant

categorically denies), Plaintiff is not entitled to damages for any such injuries, as any such injuries

stem from causes and conditions unrelated to the actions of Defendant and/or its agents.

THIRTY-FIRST DEFENSE

Plaintiff is not entitled to injunctive, equitable, or declaratory relief, since Defendant’s

actions were premised upon legitimate non-discriminatory and non-retaliatory reasons.

THIRTY-SECOND DEFENSE

Plaintiff’s claim for damages is barred in whole or in part to the extent that she has failed

to exercise reasonable diligence to mitigate her damages.

THIRTY-THIRD DEFENSE

Defendant had no knowledge of Plaintiff’s alleged disability or allegedly protected activity.

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THIRTY-FOURTH DEFENSE

Defendant reserves the right to plead other defenses and affirmative defenses that become

known during its continuing investigation and during discovery in this case.

WHEREFORE, Defendant respectfully requests:

(a) That Plaintiff’s Complaint be dismissed;

(b) That judgment be entered for Defendant;

(c) That Defendant be awarded its attorneys’ fees and costs; and,

(d) That Plaintiff take nothing.

DATED this 27th day of April 2016.


Respectfully submitted,

CONSTANGY, BROOKS,
SMITH & PROPHETE, LLP
200 W. Forsyth St.
Ste. 1700
Jacksonville, Florida 32202
Telephone: (904) 356-8900
Facsimile: (904) 356-8200

By: /s/ John S. Gibbs III


J. Ray Poole
Florida Bar No.: 983470
RPoole@Constangy.com
John S. Gibbs III
Florida Bar No.: 91102
EGibbs@Constangy.com

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 27th day of April 2016 the undersigned electronically

filed the foregoing which will be electronically served via the CM/ECF system on the following:

Stanley R. Apps
1950 Elkhorn Court, Unit #147
San Mateo, CA 94403
Stan.Apps@Gmail.com

/s/ John S. Gibbs III


Attorney

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A-273
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

UNOPPOSED MOTION TO WITHDRAW AND FOR SUBSTITUTION OF COUNSEL


AND SUPPORTING MEMORANDUM OF LAW

COMES NOW Defendant, University of South Florida Board of Trustees (hereinafter

“USFBOT”), by and through its undersigned counsel and pursuant to Middle District of Florida

Local Rule 2.03, moves this Court for entry of an Order substituting John F. Dickinson of the

law firm of Constangy, Brooks, Smith & Prophete, LLP, 200 West Forsyth Street, Suite 1700,

Jacksonville, Florida, 32202 (P.O. Box 41099, Jacksonville, Florida, 32203-1099), for John

Sikes Gibbs, and in support thereof states as follows:

1. Counsel for Defendant herein, J. Ray Poole and John Sikes Gibbs, are both with

the law firm of Constangy, Brooks, Smith & Prophete, LLP.

2. On September 16, 2016, John Sikes Gibbs will be leaving the law firm of

Constangy, Brooks, Smith & Prophete, LLP.

3. Accordingly, the undersigned request that John Sikes Gibbs be permitted to

withdraw as counsel of record in this cause, and that John F. Dickinson be permitted to serve as

substitute counsel herein.


Case 8:16-cv-00637-JSM-TGW Document 12 Filed 09/08/16 Page 2 of 3 PageID 469

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4. John F. Dickinson is a member in good standing of The Florida Bar and is

admitted to practice before the United States District Court for the Middle District of Florida.

5. Pursuant to Local Rules 2.03(b) and 3.01(g), the undersigned have notified both

USFBOT and opposing counsel about the issue raised and relief sought in this Motion. Neither

USFBOT nor opposing counsel object to the relief sought herein.

LEGAL MEMORANDUM

The Local Rules for the Middle District of Florida state that no attorney shall withdraw as

counsel except by written leave of Court. See Local Rule 2.03(b), U.S. District Court, Middle

District of Fla. (2009). As such, USFBOT now requests that this Court enter an Order permitting

John Sikes Gibbs to withdraw and permitting John F. Dickinson to serve as substitute counsel

herein. No prejudice will result from such change.

Dated this 8th day of September, 2016.

Respectfully submitted,

CONSTANGY, BROOKS,
SMITH & PROPHETE, LLP
Post Office Box 41099
Jacksonville, Florida 32203
Telephone: (904) 356-8900
Telecopier: (904) 356-8200
By:__/s/J. Ray Poole__________
John F. Dickinson
Florida Bar No. 651634
jdickinson@constangy.com
J. Ray Poole
Florida Bar No. 983470
rpoole@constangy.com

2
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 8th day of September, 2016, I electronically filed the

foregoing Defendant’s Unopposed Motion To Withdraw and For Substitution Of Counsel and

Supporting Memorandum Of Law by using the CM/ECF system, which will send a Notice of

Electronic Filing to all counsel of record herein.

/s/ J. Ray Poole


Attorney

3
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UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,
A-276
Plaintiff,

v. Case No: 8:16-cv-637-T-30TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

ORDER REFERRING CASE TO MEDIATION


AND DIRECTING SELECTION OF A MEDIATOR

Because of limited judicial resources available to try civil cases and given the nature of

this proceeding which suggests that mediation might be of benefit to the parties and the Court,

in accordance with the rules governing mediation set forth in Chapter Nine of the Rules of the

United States District Court for the Middle District of Florida, it is ORDERED that:

1. Designation of Lead Counsel: Stanley Robert Apps, Esquire, is designated as

Lead Counsel, and shall be responsible for working with the Mediator and all other counsel,

as well as any pro se parties if applicable, to schedule the mediation conference within the

window of time set forth herein. Lead Counsel shall also provide copies to the selected or

appointed Mediator of any pleadings or orders filed in the case that relate to or impact the

mediation process.

2. Referral to Mediation: This case is hereby referred to the Court-Annexed

Mediation program for a mediation conference in an attempt to achieve an equitable settlement

of the issues. The parties shall immediately select a Mediator from the Court's list of
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Certified Mediators, 1 and Lead Counsel is directed to file with the Clerk of Court, on or

before DECEMBER 9, 2016, a Notice of Mediator Selection and Scheduling of Mediation

which: (a) identifies the selected Mediator and includes complete address, telephone

and facsimile (if available) information, and (b) sets forth the time, date and place of

the scheduling for the mediation conference. If the Court finds the selected Mediator

acceptable, the Court will issue an Order Appointing a Mediator.

If the parties are unable to agree on the selection of a mediator, Lead Counsel is directed

to immediately advise the Court of same and the Court will issue an Order appointing a

mediator.

3. Scheduling Mediation Conference: The mediation conference shall be

conducted any time on or before MARCH 1, 2017.

4. General Rules Governing the Mediation Conference: Although the

mediation process is defined in greater detail in Chapter Nine of the Local Rules of this Court,

the following additional guidelines are hereby imposed:

(a) Case Summaries: Not later than five (5) working days prior to the
scheduled mediation conference, each party shall mail (or transmit by facsimile)
directly to the Mediator, with copy to opposing counsel, a brief written summary
of the facts and issues of the case. Such summaries shall be treated as
confidential communications and shall not be incorporated into the public
records of the case.

(b) Identification of Corporate and/or Claims Representatives: As part


of the written case summaries, counsel for corporate parties and claims
professionals shall state the name and general job description of the employee
or agent of the corporation who will attend and participate on behalf of the
corporate party. Such representative must have full authority to settle the
case.

(c) Authority of the Mediator: The Mediator shall have authority to


consult and conduct conferences and private caucuses with counsel, individual
parties, corporate representatives and claims professionals so as to suggest

1
Counsel are directed to consult this Court's list of Certified Mediators, available through
the Court's website: www.flmd.uscourts.gov.

2
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Case 8:16-cv-00637-JSM-TGW Document 14 Filed 11/09/16 Page 3 of 5 PageID 473

alternatives, analyze issues, question perceptions, use logic, stimulate


negotiations and keep order.

(d) Authority to Declare Impasse: While an average mediation


conference takes between three to five hours, participants shall be prepared to
spend as much time as necessary in a good faith effort to settle the case or until
an impasse is declared by the Mediator.

(e) Mediator's Report: In order avoid unnecessary expenditure of judicial


resources respecting pending motions, etc., within five (5) days following the
mediation conference, the Mediator shall file with the Clerk of Court a
"Mediation Report" setting forth the results thereof (a copy of which form is
included in the attachment hereto).

5. Compensation of the Mediator: The Mediator shall be compensated at a rate

up to $375.00 per hour, which shall be borne equally by all parties unless otherwise agreed to

by counsel, and shall be payable immediately upon the conclusion of mediation or as required

in advance by the mediator.

6. Failure to Comply: Should any of the parties fail to comply with the terms of

this Order, appropriate sanctions may be imposed.

The parties are urged to take full advantage of this opportunity to amicably resolve the

issues herein. However, the mediation process shall not serve as a basis for any motion to

continue the trial of the case. Should mediation prove unsuccessful, the case shall remain on

its present course for pretrial conference and trial.

DONE and ORDERED in Tampa, Florida, this 9th day of November, 2016.

Copies furnished to:


Counsel/Parties of Record

Attachment:
Mediation Report

3
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UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,
A-279
Plaintiff,

v. Case No: 8:16-cv-637-T-30TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

MEDIATION REPORT

In accordance with the Court's mediation order(s), a mediation conference was held on

___________________________, 20_____, and the results of that conference are indicated

below:

(a) The following individuals, parties, corporate representatives, and/or claims


professionals attended and participated in the mediation conference, and each possessed the
requisite settlement authority:

_____ All individual parties and their respective trial counsel.

_____ Designated corporate representatives.

_____ Required claims professionals.

(b) The following individuals, parties, corporate representatives, and/or claims

professionals failed to appear and/or participate as ordered:

(c) The outcome of the mediation conference was:

_____ The case has been completely settled. In accordance with Local Rule
9.06(b), lead counsel will promptly notify the Court of settlement in
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accordance with Local Rule 3.08 by the filing of a settlement agreement


signed by the parties and the mediator within ten (10) days of the mediation
conference.

_____ The case has been partially resolved and lead counsel has been
instructed to file a joint stipulation regarding those claims which have been
resolved within ten (10) days. The following issues remain for this Court
to resolve:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________

_____ The mediation has been continued to: (list date and time:)

___________________________________________________________
(Requires Court approval.)

_____ The parties have reached an impasse.

Done this __________ day of ______________________, 20_____.

_________________________________________
Signature of Mediator

_________________________________________
Name of Mediator

_________________________________________
Mailing Address

_________________________________________
City, State, and Zip Code

_________________________________________
Telephone Number

Copies furnished to:


Counsel/Parties of Record

2
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A-281
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

JOINT MOTION FOR ENLARGEMENT OF THE


DISCOVERY AND DISPOSITIVE MOTION DEADLINES
AND INCORPORATED MEMORANDUM OF LAW

Plaintiff, NAUSHEEN ZAINULABEDDIN, and Defendant, UNIVERSITY OF SOUTH

FLORIDA BOARD OF TRUSTEES, by and through their undersigned counsel, and pursuant to

Federal Rule of Civil Procedure 6(b) and Rule 3.01 of the Local Rules of the Middle District of

Florida, file this Joint Motion for Enlargement of the Discovery and Dispositive Motion

Deadlines and Incorporated Memorandum of Law, and in support state as follows:

1. The current discovery deadline herein is January 3, 2016, and the current deadline

for dispositive motions herein is February 1, 2016. This Motion is therefore brought before the

expiration of those deadlines.

2. The parties hereto have engaged in discovery, but additional time for the

completion of discovery is needed.

3. Due to the holidays, pressing matters in other cases, as well as scheduling

conflicts among the parties and counsel for the parties hereto, the parties have been unable to

schedule and take necessary depositions.


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4. The parties hereto request a brief enlargement of the discovery deadline until

February 1, 2016,

5. The parties also request a three (3) day enlargement of the dispositive motion

deadline until February 4, 2016.

6. The enlargements of time sought herein would not necessitate a modification of

any other case management deadlines herein.

7. This request for an enlargement of the discovery and dispositive motion deadlines

has been made in good faith and not for any improper purpose. The parties hereto have not

previously sought an enlargement of any of the case management deadlines herein. Moreover,

the parties hereto submit that good cause exists for granting the relief requested herein, and that

the relief sought herein will not delay the trial of this action.

MEMORANDUM OF LAW

Rule 6(b) of the Federal Rules of Civil Procedure provides as follows:

When an act may or must be done within a specified time, the


court may, for good cause, extend the time: (1) with or without
motion or notice if the court acts, or if a request is made, before the
original time or its extension expires . . . .

Fed.R.Civ.P. 6(b). A district court has wide discretion to grant an enlargement of time when the

request is made prior to the expiration of the period originally prescribed. See Choi v. Chemical

Bank, 939 F.Supp. 304, 309 (S.D.N.Y. 1996). An extension of time is “usually . . . granted

upon a showing of good cause, if timely made, . . . .” Creedon v. Taubman, 8 F.R.D. 268, 269

(N.D. Ohio 1947).

In the present case, the parties hereto have demonstrated good cause for their requested

enlargement of the discovery and dispositive motion deadlines. Moreover, the parties hereto

2
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have not previously sought an enlargement of the discovery and dispositive motion deadlines

herein, and the relief sought herein will not delay the trial of this action.

WHEREFORE, for the forgoing reasons, the parties hereto respectfully request an

enlargement of the discovery deadline until February 1, 2016, and an enlargement of the

dispositive motion deadline until February 4, 2012.

DATED this 29rd day of February, 2016.

Respectfully submitted,

By: ___/s/ Stanley R. Apps_____


Stanley R. Apps
Florida Bar No. 0108868
Stanley R. Apps, P.A.
1950 Elkhorn Ct., Unit 147
San Mateo, CA 94403
Telephone: (310) 709-3966
stan.apps@gmail.com

Attorney for Plaintiff

CONSTANGY, BROOKS, SMITH &


PROPHETE, LLP
Post Office Box 41099
Jacksonville, Florida 32203
Telephone: (904) 356-8900
Telecopier: (904) 356-8200
By:__J. Ray Poole__________
J. Ray Poole
Florida Bar No.: 983470
rpoole@constangy.com

Attorneys for Defendant

3
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 29th day of November, 2016, the undersigned

electronically filed the foregoing which will be electronically served via the CM/ECF system on

all counsel of record.

/s/ J. Ray Poole


Attorney

4
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

NOTICE OF MEDIATOR SELECTION AND SCHEDULING OF MEDIATION

Plaintiff, NAUSHEEN ZAINULABEDDIN, and Defendant, UNIVERSITY OF SOUTH

FLORIDA BOARD OF TRUSTEES, by and through their undersigned counsel, pursuant to this

Court’s Order Referring Case to Mediation and Directing Selection of Mediator, hereby submit

this Notice of Mediator Selection and Scheduling of Mediation and state as follows:

1. The parties hereto have selected Christopher M. Shulman, Esquire, Shulman ADR

Law, P.A., 5111 Ehrlich Road, Suite 120, Tampa, Florida 33624, Telephone: (813) 935-9922,

Facsimile: (813) 333-7326, to serve as mediator.

2. The mediation is scheduled to begin at 9:00 a.m., on Friday, February 10, 2017,

at the offices of Christopher M. Shulman.


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DATED this 9th day of December, 2016.

Respectfully submitted,

CONSTANGY, BROOKS, SMITH &


PROPHETE, LLP
Post Office Box 41099
Jacksonville, Florida 32203
Telephone: (904) 356-8900
Telecopier: (904) 356-8200
By:__J. Ray Poole__________
J. Ray Poole
Florida Bar No.: 983470
rpoole@constangy.com

Attorneys for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 9th day of December, 2016, the undersigned

electronically filed the foregoing which will be electronically served via the CM/ECF system on

all counsel of record.

/s/ J. Ray Poole


Attorney

2
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff(s),

v. CASE NO. 8:16-CV-637-T-30TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant(s).
/

ORDER APPOINTING MEDIATOR


AND SCHEDULING MEDIATION

Pursuant to the Court's Order referring this case to mediation and directing the parties to

select a Mediator, and in accordance with the rules governing mediation set forth in Chapter Nine

of the Rules of the United States District Court for the Middle District of Florida, it is ORDERED

that:

The following individual is hereby appointed by the Court to serve as Mediator in this

action:

Name of Mediator: Christopher M. Shulman


Address: 5111 Ehrlich Road, Suite #120
Tampa, FL 33624
Telephone Number: 813-935-9922 Fax: 813-333-7326
E-Mail: chris@shulmanadrlaw.com

Date/Time of Mediation: FRIDAY, FEBRUARY 10, 2017


AT 9:00 A.M.

Place of Mediation: Office of the Mediator


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Counsel are reminded of their obligations to comply with the provisions in ¶¶ 4(a) an (b)

of the Order of Referral. The mediator is authorized to continue or reschedule the mediation.

The Mediator's attention is drawn to the importance that within five (5) days following the

mediation conference, the Mediator's Report as to the outcome of mediation be timely filed.

DONE and ORDERED in Tampa, Florida on December 13, 2016.

Copies furnished to:


Mediator
Counsel/Parties of Record

F:\Docs\2016\16-cv-637 appt mediator.wpd

2
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.
______________________________________/

PLAINTIFF’S PARTIALLY OPPOSED MOTION TO TAKE DEPOSITION


OF DR. JOANNE VALERIANO-MERCET
SUBSEQUENT TO CLOSE OF DISCOVERY,
WITH INCORPORATED STATEMENT OF GOOD CAUSE WHEREFORE

Pursuant to Rule 30 of the Federal Rules of Civil Procedure, the

Plaintiff, Nausheen Zainulabeddin (“Zainulabeddin”), by and through her

undersigned counsel, hereby files her Motion to Take Deposition of Dr. Joanne

Subsequent to Close of Discovery, with Incorporated Statement of Good Cause

Wherefore. In support of her Motion, Zainulabeddin states as follows:

FACTUAL AND PROCEDURAL BACKGROUND

1. Zainulabeddin, by and through her counsel, first notified Defendant of

her need to depose Dr. Joanne Valeriano-Marcet (hereinafter “Dr.

Valeriano”) in November of 2016. At that time, Discovery in the instant

case was scheduled to conclude on January 3, 2017.

! 1!
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2. Shortly thereafter, Defendant’s counsel notified Zainulabeddin that

multiple witnesses she desired to depose, including Dr. Valeriano, could

not be made available prior to close of discovery.

3. To provide Defendant with additional time to cooperate with Discovery,

the parties filed a Joint Motion for Extension of Time to Complete

Discovery [Dkt. 15] on November 29, 2017. Said Motion was granted by

this honorable Court on November 30, 2017, extending the time to

complete discovery through February 1, 2017. See Dkt. 16.

4. Since that time, Zainulabeddin’s counsel has repeatedly reminded

counsel for Defendant of her need to depose Dr. Valeriano. Dates on

which Zainulabeddin’s counsel raised this issue include but are not

limited to: December 1, 2016 and December 8, 2016.

5. Zainulabeddin served a Notice of Taking Deposition of Dr. Joanne

Valeriano-Marcet on December 14, 2016. Said Notice is attached hereto as

Exhibit A. Service of said Notice placed Defendant unequivocally on

Notice of Zainulabeddin’s intention to depose Valeriano.

6. Thereafter, Defendant’s counsel announced that Valeriano was not

available at the time specified in Plaintiff’s Notice of Taking Deposition.

7. Zainulabeddin raised the question of Valeriano’s availability to

Defendant’s counsel on at least four additional occasions in January of

2017.

! 2!
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8. Finally Defendant’s counsel informed Zainulabeddin that Valeriano was

available for 1.5 hours on Tuesday, January 31, the penultimate day of the

Discovery period. However the offered availability was at a time when

Zainulabeddin’s counsel was not available, as well as being insufficient

in length. (Zainulabeddin has notified Defendant’s counsel that she will

need to depose Valeriano for approximately three hours).

9. Most recently, Defendant has offered to make Valeriano available for 1.5

hours on Friday, February 3—two days after the close of Discovery.

Again, the time slot offered by Defendant is too short to conduct the

entire deposition.

10. In response to the challenging behavior of Defendant and Dr. Valeriano,

Zainulabeddin now moves for leave to depose Valeriano subsequent to

the close of Discovery, for three hours during the month of February

2017.

11. An order authorizing such Deposition of Dr. Valeriano-Marcet will not

require modification of any other deadlines in the Case Management

Order [Dkt. 9].

12. Valeriano is a key witness because she was a Course Director of a course

called Doctoring II, which Zainulabeddin attended at the Morsani

College of Medicine in the 2012-13 Academic Year, and which she

allegedly failed. Zainulabeddin argues that her performance in said

! 3!
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course, in light of the applicable policies of the College of Medicine, did

not justify failure of said course.

MOTION

WHEREFORE the Plaintiff, Nausheen Zainulabeddin, by and through

her counsel, humbly prays this Honorable Court for the following relief:

1. Issuance of an Order granting Zainulabeddin Leave to depose Dr.

Joanne Valeriano-Marcet for three hours during February 2017, as an

exception to the February 1, 2017 Discovery Deadline.

MEMORANDUM OF LAW

Rule 30 of the Federal Rules of Civil Procedure authorizes a party to

depose witnesses. The conduct of Defendant and Dr. Joanne Valeriano-Marcet,

in refusing to make her reasonably available for deposition, tends to frustrate

Zainulabeddin’s ability to depose her. In such a circumstance, this Court has

inherent power to allow an exception to the Discovery Deadline set forth in the

Case Management and Scheduling Order.

The Court should allow such exception in the interests of justice, so that

Zainulabeddin will not be unfairly denied an opportunity to depose an

important witness.

! 4!
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RULE 3.01(g) CERTIFICATION

Pursuant to Rule 3.01(g) of the Local Rules of the District Court for the

Middle District of Florida, Zainulabeddin has conferred with Defendant’s

counsel on multiple occasions, in person and by telephone, as to whether

Defendant opposes the relief sought by this Motion.

Defendant has informed Zainulabeddin that the Motion is partially

opposed. Defendant does not oppose allowing Zainulabeddin to depose

Valeriano-Marcet for 1.5 hours on February 3, 2017. However Defendant

opposes Zainulabeddin’s request to complete the deposition after February 3,

2017, as well as her request for Leave to depose Dr. Valeriano for three hours.

Respectfully submitted on this 1st day of February, 2017.

/s/ Stanley R. Apps

Stanley R. Apps, Esq.


FL Bar. No. 0108868
Stanley R. Apps, P.A.
1950 Elkhorn Ct., Unit 147
San Mateo, CA 94403
(310) 709-3966
stan.apps@gmail.com
Attorney for Plaintiff

! 5!
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CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2016, I electronically filed the


foregoing with the Clerk of Court by using the CM/ECF system, which will
send a Notice of Electronic Filing to all counsel of record herein.

/s/ Stanley R. Apps

! 6!
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Exhibit A
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A-296
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8-16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.
______________________________________/

PLAINTIFF’S NOTICE OF TAKING DEPOSITION


OF DR. JOANNE VALERIANO-MARCET

To: Board of Trustees of the University of South Florida; Dr. Joanne


Valeriano-Marcet
c/o Ray Poole, Esq.
Constangy, Brooks, Smith & Prophete, LLP
200 W. Forsyth St., Suite 1700
Jacksonville, FL 32202-4317

PLEASE TAKE NOTICE that commencing at 1:00 p.m., on Wednesday,

January 25, 2017 at the offices of Sclafani Williams Court Reporters, 101 E.

Kennedy Boulevard, Suite 1850, Tampa, Florida 33602, the Plaintiff Nausheen

Zainulabeddin, through her undersigned counsel, will take the deposition of

Dr. Joanne Valeriano-Marcet, on oral examination pursuant to Rule 30 of the

Federal Rules of Civil Procedure, before Sclafani Williams Court Reporters,

officers authorized by law to administer oaths. This deposition will continue

from hour to hour and day to day until completed.

! 1!
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Queries regarding accommodation of disabilities should be sent to

Stanley R. Apps, Esq., prior to the scheduled deposition date.

PLEASE GOVERN YOURSELF ACCORDINGLY.

DATED the 14th of December, 2016.

Respectfully Submitted for Stanley R. Apps, P.A.:

/s/ Stanley R. Apps

Stanley R. Apps, Esq.


FL Bar. No. 0108868
1950 Elkhorn Ct., Unit # 147
San Mateo, CA 94403
(310) 709-3966
stan.apps@gmail.com
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on December 14, 2016, I served the foregoing

electronically on Defendant’s counsel at the following addresses:

Ray Poole, Esq. John Dickinson, Esq.


rpoole@constangy.com jdickinson@constangy.com

/s/ Stanley R. Apps

! 2!
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A-300
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

JOINT MOTION TO EXTEND MEDIATION DEADLINE


AND INCORPORATED MEMORANDUM OF LAW

Plaintiff, NAUSHEEN ZAINULABEDDIN, and Defendant, UNIVERSITY OF SOUTH

FLORIDA BOARD OF TRUSTEES, by and through their undersigned counsel, and pursuant to

Federal Rule of Civil Procedure 6(b) and Rule 3.01 of the Local Rules of the Middle District of

Florida, file this Joint Motion to Extend Mediation Deadline and Incorporated Memorandum of

Law, and in support state as follows:

1. Mediation herein is currently scheduled to take place on Friday, February 10,

2017.

2. Due to unforeseen circumstances beyond the parties’ control, the parties are in

need of additional time in which to complete mediation herein.

3. Moreover, an extension of the mediation deadline would afford the parties

additional time in which to attempt to schedule and take the deposition of Dr. Valeriano prior to

the mediation.
Case 8:16-cv-00637-JSM-TGW Document 21 Filed 02/03/17 Page 2 of 3 PageID 496

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4. The parties hereto request a brief enlargement of the mediation deadline until

March 1, 2017,

5. The enlargement of time sought herein would not necessitate a modification of

any other case management deadlines herein.

6. This request for an enlargement of the mediation deadline has been made in good

faith and not for any improper purpose.

MEMORANDUM OF LAW

Rule 6(b) of the Federal Rules of Civil Procedure provides as follows:

When an act may or must be done within a specified time, the


court may, for good cause, extend the time: (1) with or without
motion or notice if the court acts, or if a request is made, before the
original time or its extension expires . . . .

Fed.R.Civ.P. 6(b). A district court has wide discretion to grant an enlargement of time when the

request is made prior to the expiration of the period originally prescribed. See Choi v. Chemical

Bank, 939 F.Supp. 304, 309 (S.D.N.Y. 1996). An extension of time is “usually . . . granted

upon a showing of good cause, if timely made, . . . .” Creedon v. Taubman, 8 F.R.D. 268, 269

(N.D. Ohio 1947).

WHEREFORE, for the forgoing reasons, the parties hereto respectfully request an

enlargement of the mediation deadline until March 1, 2017.

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DATED this 3rd day of February, 2017.

Respectfully submitted,

By: ___/s/ Stanley R. Apps_____


Stanley R. Apps
Florida Bar No. 0108868
Stanley R. Apps, P.A.
1950 Elkhorn Ct., Unit 147
San Mateo, CA 94403
Telephone: (310) 709-3966
stan.apps@gmail.com

Attorney for Plaintiff

CONSTANGY, BROOKS, SMITH &


PROPHETE, LLP
Post Office Box 41099
Jacksonville, Florida 32203
Telephone: (904) 356-8900
Telecopier: (904) 356-8200
By:__J. Ray Poole__________
J. Ray Poole
Florida Bar No.: 983470
rpoole@constangy.com

Attorneys for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 3rd day of February, 2017, the undersigned

electronically filed the foregoing which will be electronically served via the CM/ECF system on

all counsel of record.

/s/ J. Ray Poole


Attorney

3
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT


AND SUPPORTING MEMORANDUM OF LAW

COMES NOW Defendant, the University of South Florida Board of Trustees (hereinafter

referred to as “Defendant” or “USF”), by and through its undersigned attorneys, pursuant to Rule

56 of the Federal Rules of Civil Procedure, and files its Motion for Summary Judgment and

Supporting Memorandum of Law as follows:

I. Overview of Plaintiff’s Claims

At all times relevant to this action, Plaintiff was a medical student in the Doctor of

Medicine Program at USF’s Morsani College of Medicine (hereinafter “MCOM”). (Doc. 2, ¶ 18)

Plaintiff began her medical studies at MCOM during the 2009-2010 academic year. (Id.) Plaintiff

failed her first year of studies in medical school and had to repeat the first year of the Doctor of

Medicine Program during the 2010-2011 academic year. (Id. at ¶¶ 30-31) Plaintiff thereafter

continued to fail academic courses in the Doctor of Medicine Program and was dismissed from

the Program in January 2012. (Id. at ¶¶ 50, 56) However, Plaintiff’s dismissal was subsequently

reversed, and she was permitted to remain in the Program on academic probation. (Id. at ¶¶ 57-64)
Case 8:16-cv-00637-JSM-TGW Document 22 Filed 02/04/17 Page 2 of 25 PageID 499

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At that point, although Plaintiff had been in the Doctor of Medicine Program for nearly three (3)

years, she had only successfully completed one (1) year. (Id. at ¶ 66) Plaintiff also did not

successfully complete the second year of the Doctor of Medicine Program and had to repeat it

during the 2012-2013 academic year. (Id. at ¶¶ 79-80) In short, although Plaintiff engaged in

medical studies at MCOM for four (4) academic years, she only successfully completed two (2)

years in the Doctor of Medicine Program. In March 2013, Plaintiff was dismissed from the Doctor

of Medicine Program for academic reasons. (Id. at ¶¶ 115-116)

Plaintiff’s Complaint contains six (6) counts. In Count I, Plaintiff contends that USF is

vicariously liable for a purported breach of fiduciary duties owed to Plaintiff by USF’s Dean of

Student Affairs for the MCOM. In Count II, Plaintiff claims that USF is vicariously liable for

purported negligent misrepresentations made to Plaintiff by USF’s Dean of Student Affairs for the

MCOM. In Count III, Plaintiff contends that USF breached the terms of its “contractual

relationship” with her by failing to issue refunds to her of tuition that she paid for the two (2)

unsuccessful academic years that she spent at MCOM. In Count IV, Plaintiff contends that USF

was unjustly enriched when it failed to issue refunds to her of tuition that she paid for the two (2)

unsuccessful academic years that she spent at MCOM. In Count V, Plaintiff claims that USF

discriminated against her on the basis of a disability while she was a student at MCOM, in violation

of Section 504 of the Rehabilitation Act. Finally, in Count VI, Plaintiff claims that USF retaliated

against her while she was a student at MCOM, in violation of Section 504 of the Rehabilitation

Act.

For the reasons set forth herein, USF respectfully submits that this Court should grant

summary judgment in its favor with respect to all of Plaintiff’s claims against it.

2
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II. Statement of Undisputed Material Facts

A. USF

USF is a state university. Section 1000.21(6)(d), Fla. Stat. The Board of Trustees of USF

is the legal entity with the power to sue and be sued in the name of USF. Section 1001.72, Fla.

Stat. Plaintiff admits that USF “is a state agency or subdivision of the State of Florida.” (Doc. 2, ¶

9)

B. Prior to Medical School

Between the Fall of 2007 and Summer of 2009, Plaintiff attended USF’s Master’s Program

in Medical Sciences. (Pl. Depo. p. 74, l. 3-18; Doc. 2, ¶ 11) On July 1, 2008, Plaintiff was

“informally” diagnosed as potentially having Attention Deficit Hyperactivity Disorder (hereinafter

“ADHD”) and/or Generalized Anxiety Disorder. (Pl. Depo. p. 64, l. 23 – p. 68, l. 22; Doc. 2, ¶¶

13-15) Her physician initially prescribed the medication “Concerta,” but was subsequently

prescribed “Adderall” for her ADHD. (Pl. Depo. p. 63, l. 12-18 ; Doc. 2, ¶ 15) She was first

prescribed Adderall in July 2008, and her dosage was increased in May 2009. (Pl. Depo. p. 57, l.

1 – p. 62, l. 8; p. 73, l. 17 – p. 74, l. 2) She sought treatment because she was doing poorly in one

of her classes and was having difficulty with her studies. (Pl. Depo. p. 57, l. 1 – p. 62, l. 8; p. 74,

l. 19 – p. 75, l) Once Plaintiff began taking the Adderall, it seemed to help her in her studies in the

Master’s Program. (Pl. Depo. p. 74, l. 19 – p. 75, l. 24)

C. Plaintiff’s Participation In USF’s Doctor of Medicine Program

In August 2009, Plaintiff began her studies in the Doctor of Medicine Program at MCOM.

She did not tell anyone at MCOM about her “informal” ADHD diagnosis, and she did not indicate

that she needed any accommodations. (Pl. Depo. p. 83, l. 16 – p. 84, l. 23) Between August 2009

and April 2010, Plaintiff continued to take Adderall. (Pl. Depo. p. 81, l. 14 – p. 83, l. 3) Although

3
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Plaintiff was taking Adderall, she nonetheless began having academic difficulties during her first

semester in medical school. (Pl. Depo. p. 83, l. 4-15)

On March 1, 2010, during Plaintiff’s second semester in medical school, she contacted Dr.

Steven Specter, the Associate Dean for Student Affairs at USF’s MCOM, spoke with him about

her academic difficulties in the Doctor of Medicine Program, and told him that she had previously

been “informally” diagnosed with ADHD. (Pl. Depo. p. 84, l. 24 – p. 89, l. 14) She went to Dr.

Specter because she believed that she had done poorly on a cardiology examination that she had

just taken. (Id.) She asked Dr. Specter whether she should take a leave of absence from the

Program, and Dr. Spector suggested that she not do so but instead try to successfully complete the

academic year. (Pl. Depo. p. 124, l. 18 – p. 126, l. 24; Doc. 2, ¶ 26) At that time, the student

handbook -- which was readily available to Plaintiff -- set forth the circumstances under which

such a leave of absence would be granted by MCOM. (Doc. 2 at ¶ 28; Doc. 2 Ex. B, p. 35) Thus,

Plaintiff did not need to rely upon Dr. Specter for advice concerning her eligibility for such leave.

Moreover, pursuant to the terms set forth in the handbook, the decision whether to place a student

on such a leave is absence could not have been made by Dr. Specter, but was instead to be made

by the Vice Dean for Educational Affairs. (Id.) Therefore, Plaintiff presumably knew -- or if she

had read the student handbook she should have known – that Dr. Specter did not have the authority

to decide whether a student could take such leave.

Despite taking Adderall, Plaintiff did not successfully complete her first year in medical

school. She failed all of her final examinations, with the exception of one. (Pl. Depo. p. 97, l. 5-

16) Thus, during the 2010-2011 academic year, Plaintiff was permitted to repeat her first year of

medical school during which time she was on academic probation. (Pl. Depo. p. 174, l. 19 – p.

176, l. 11)

4
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During the 2011-2012 academic year, after Plaintiff had successfully repeated her first

year, she was taken off of academic probation and underwent her second year of medical school.

(Id.) Plaintiff again began having academic problems. She failed two (2) courses, so after engaging

in the proper administrative process and following the requisite internal procedures, the Academic

Performance Review Committee (“APRC”) decided in January 2012 to dismiss Plaintiff from the

Program for academic reasons. (Pl. Depo. p. 178, l. 12 – p. 179, l. 22)

The January 2012 decision to dismiss Plaintiff from the Program was subsequently

reversed, but Plaintiff ultimately failed and had to repeat her second year in the Program. (Doc. 2

at ¶¶ 79-80) When Plaintiff repeated her second year in the Program, which was during the 2012-

2013 academic year, she continued to have academic problems. (Pl. Depo. p. 194, l. 16 – p. 198,

l. 21; p. 204, l. 1-22) Thus, in March 2013, the APRC again engaged in the proper administrative

process and following the requisite internal procedures decided to terminate Plaintiff from USF’s

Doctor of Medicine Program. (Pl. Depo. p. 197, l. 17 – p. 198, l. 21)

D. Accommodations Provided to Plaintiff

Plaintiff admits that, while she was a student in USF’s Doctor of Medicine Program, she

was afforded the following opportunities to overcome her academic problems: (1) she was

permitted to repeat her first and second years in medical school after she failed both of those years

in their entirety on her first attempt; (2) examinations were repreatedly postponed (Pl. Depo. at p.

155, l. 16 – p. 159, l. 21; p. 192, l. 25 – p. 193, l. 19; p. 194, l. 16 – p. 196, l. 5; p. 209, l. 19 – p.

210, l. 10); (3) she had extra time to complete examinations (Pl. Depo. p. 191, l. 22 – p. 192, l. 24);

(4) she was permitted to take examinations in a distraction free environment (Pl. Depo. p. 191, l.

22 – p. 192, l. 24); and, (5) she was provided tutors (Pl. Depo. p. 113, l. 25 – p. 115, l. 20).

Plaintiff also admitted in her deposition that during the 2009-2010 and 2011-2012

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academic years, no one held her to a different standard than other students. (Pl. Depo. p. 160, l. 5

– p. 161, l. 7) She also admitted that, when she repeated her first and second years in the program,

she was held to the same standard as other repeating students. (Pl. Depo. p. 161, l. 8 – p. 163, l. 9)

To illustrate, Plaintiff was provided extraordinary accommodations after she failed the

Evidence Based Clinical Reasoning II (“EBCR II”) course and was repeating it during the 2012-

2013 academic year. Dr. Roth, who was a co-director of the EBCR II course that year, gave an

assignment to Plaintiff and other repeating students that they each prepare a case study. (Roth

Depo. p. 56, l. 18-23) Each of the repeating students were given the same assignment, and each

was given a November 2 deadline to complete the assignment. (Roth Depo. p. 57, l. 16 – p. 58, l.

12; Roth Depo. Ex. 13) On November 10, eight (8) days after the assignment deadline, Plaintiff

forwarded an email to Dr. Roth about the assignment and that fact that it was not complete. (Roth

Depo. p.58, l. 16-23 and Ex. 13) On November 26, Dr. Roth sent an email to Plaintiff, wherein she

explained that the work Plaintiff had done on the assignment was inadequate, and Dr. Roth gave

her yet more time, until one week after the end of the course, to rework and submit the assignment.

(Roth Depo. p. 59, l. 15 – p. 60, l. 9) As of January 9, more than two (2) months after the original

due date, Plaintiff still had not completed and turned in her reworked assignment. (Roth Depo. p.

60, l. 10-19; Roth Depo. Ex. 14) Nonetheless, Dr. Roth did not penalize Plaintiff because of the

delinquency. (Roth Depo. p. 60, l. 20-23) Plaintiff was also given a two month extension of time

to take a final examination in the EBCR II course. (Roth Depo. p. 61, l. 5 – p. 63, l. 6; Roth Depo.

Ex. 17) Despite having received a lengthy extension of time to take the final examination, Plaintiff

still not pass it. (Roth Depo. p. 63, l. 12-17; Roth Depo. Ex. 6) Nonetheless, Plaintiff was afforded

the opportunity to re-take the examination, and she even received an extension of time in which to

do so. (Roth Depo. p. 63, l. 12 – p. 64, l. 7; Roth Depo. Ex. 6 and 18)

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Dr. Kumar was the other co-director of the EBCR II course. (Kumar Depo. p. 5, l. 16 – p.

7, l. 3) He testified in deposition that on one occasion Plaintiff simply failed to show up to take a

test. Rather than give Plaintiff a failing grade on the test, however, Dr. Kumar gave her an

incomplete. (Kumar Depo. p. 29, l. 5-24) On another occasion, Plaintiff requested that she be given

twice as much time to complete an examination, which he granted. (Kumar Depo. p. 30, l. 14 – p.

31, l. 9) In all, Plaintiff was permitted to make up examinations many times over the years. (Kumar

Depo. p. 65, l. 24 – p. 67, l. 20) He also agreed to postpone one of her examinations. (Kumar Depo.

p. 36, l. 13 – p. 37, l. 11; Kumar Depo Ex. 9 and 10)

Plaintiff also had difficulties in her Doctoring II course. According to Dr. Stock, who taught

Doctoring II, Plaintiff asked that she be permitted to postpone the requirement that she participate

in pediatric rounds, there were times when Plaintiff was prepared for class, times when Plaintiff

delayed taking course tests, and times when she did not turn in assignments on time. (Stock Depo.

p. 106, l. 11 – p. 107, l. 24; p. 110, l. 11 – p. 112, l. 8) The “histories and physicals” (“H&Ps”) that

Plaintiff wrote up on patients that she saw in a clinical setting were inadequate, so she was

instructed to re-write them. (Stock Depo. p. 66, l. 9 – p. 67, l. 1)

III. Argument and Authority

A. The Standard for Summary Judgment

Summary judgment is appropriate if there exists no genuine issue of material fact such that

the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Fed. R. Civ. P. 56.

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B. The Breach of Fiduciary Duties and Negligent Misrepresentation Claims Are Time-

Barred

Plaintiff’s claims for breach of fiduciary duties and negligent misrepresentation, as set forth

in Counts I and II of her Complaint, are barred by the applicable statute of limitations. Under

Florida law, claims for negligent misrepresentation and breach of fiduciary duties are governed by

a four (4) year statute of limitations. Mayor's Jewelers, Inc. v. Meyrowitz, 2012 WL 2344609, at

*4 (S.D. Fla. 2012) (negligent misrepresentation); Davis v. Monahan, 832 So. 2d 708, 709 (Fla.

2002) (breach of fiduciary duties). The “delayed discovery doctrine” does not operate to toll the

running of the statute of limitations for those claims. Davis, 832 So. 2d at 709; Reuss v. Orlando

Health, Inc., 140 F. Supp. 3d 1299, 1307 (M.D. Fla. 2015). Rather, the statute of limitations

“begins to run when the last element of the cause of action occurs.” Davis, 832 So. 2d at 709-710;

Reuss, 140 F. Supp. 3d at 1307. Although Florida statutes set forth limited circumstances under

which a statute of limitations may be tolled, none are applicable in the case at bar. See Section

95.051, Florida Statutes. Thus, the four (4) year statute of limitations for Plaintiff’s claims for

breach of fiduciary duties and negligent misrepresentation began to run once the last element of

those claims purportedly occurred.

Plaintiff’s claim for breach of fiduciary duties is predicated upon two (2) events. First, she

claims that during February and March 2010, Dr. Steven Specter, then Associate Dean for Student

Affairs, made a poor recommendation that she attempt to successfully complete her first year of

medical school, rather than take a leave of absence from school and obtain a comprehensive

neuropsychological examination. Second, she claims that in October 2010, Dr. Specter provided

her with erroneous information about the results of a neuropsychological examination that she had

undergone the prior month. (Doc. 2, ¶¶ 127, 131) Thus, the facts giving rise to Plaintiff’s claim for

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breach of fiduciary duties arose in March and October 2010.

Plaintiff’s claim for negligent misrepresentation is likewise predicated upon the allegation

that in October 2010, Dr. Specter provided her with erroneous information about the results of a

neuropsychological examination that she had undergone the prior month. (Doc. 2, ¶ 142) Thus, the

facts giving rise to Plaintiff’s claim for negligent misrepresentation arose in October 2010.

Yet, Plaintiff did not initiate this action until January 22, 2016, when she filed her

Complaint in the Circuit Court of the Thirteenth Judicial Circuit, in Hillsborough County, Florida.

(Doc. 2, pp. 1 and 55) At that point, the four (4) year statute of limitations for those claims had

long expired. As such, her claims for breach of fiduciary duties and negligent misrepresentation

are barred by the four (4) year statute of limitations.1

Plaintiff may attempt to avoid the statute of limitations bar by arguing that USF is equitably

estopped from asserting that defense. However, USF is not equitably estopped from asserting a

statute of limitations defense to Plaintiff’s negligent misrepresentation and breach of fiduciary

duties claims. First, equitable estoppel presupposes an act of wrongdoing, such as fraud and

concealment. Florida Dep't of Health & Rehab. Servs. v. S.A.P, 835 So. 2d 1091, 1097 (Fla. 2002).

Where misstatements are made without knowledge that they are false, are not made with the intent

to mislead, and are not made in bad faith, equitable estoppel does not apply. See United States v.

McCorkle, 321 F.3d 1292, 1297 (11th Cir.2003) (holding that in order to apply equitable estoppel

against the government, affirmative misconduct must be shown, and “[a]ffirmative misconduct

requires more than governmental negligence or inaction”); see also Hamilton v. Sec'y, DOC, 410

1
Plaintiff may attempt to argue that she did not discover that the advice and information provided
by Dr. Specter were erroneous until later and that the statute of limitations did not begun to run
until she had discovered the errors. However, as the Florida Supreme Court has made clear, the
“delayed discovery doctrine” does not toll the running of the statute of limitations for these claims.
Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002) (breach of fiduciary duties).
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F. App'x 216, 220 (11th Cir. 2010). Second, equitable estoppel only applies to bar a statute of

limitations defense where the wrongdoer has induced the injured party to forbear from filing suit

during the limitations period. Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279, 281 (Fla. 3d

DCA 2013); Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1093 (Fla. 5th DCA 2011)

(“Stated another way, ‘[e]quitable estoppel arises where the parties recognize the basis for suit,

but the wrongdoer prevails upon the other to forego enforcing his right until the statutory time

has lapsed.’”). Equitable estoppel does not bar a statute of limitations defense where the injured

party is induced to delay filing suit, but where the inducement to delay filing suit ends prior to

expiration of the statute of limitations. See Delco Oil, Inc. v. Pannu, 856 So.2d 1070, 1073 (Fla.

5th DCA 2003) (“Unlike the plaintiffs in Morsani who had been lulled into complacency by the

defendants' conduct until a date after the statute of limitations had run on their tortious interference

claim, here Pannu had actual notice within one month of the date that the lease was signed that the

alleged breach had occurred and thus he had [four] years and [eleven] months within which to file

a timely breach of contract complaint against Delco. Additionally, and perhaps more importantly,

there is no evidence in the record that Delco engaged in any conduct indicating an intent to lull

Pannu into a disadvantageous legal position or preventing Pannu from filing his lawsuit within the

applicable five[-]year statute of limitations.”); Olean Med. Condo. Ass'n, Inc. v. Azima, 144 So.

3d 561, 565 (Fla. 2nd DCA 2014) (holding that association was not equitably estopped from raising

statute of limitations defense to owner's action arising from associations alleged wrongful failure

to make roof repairs; majority of time within which owner could have filed suit still remained after

owner learned that association would not pay for further repairs to roof.).

Plaintiff bears the burden of presenting facts to establish equitable estoppel. However, she

cannot present any evidence that USF engaged in any fraudulent activity, or that it made any

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representations in bad faith with the intent to trick Plaintiff into foregoing suit until after expiration

of the statute of limitations. Absent such evidence, USF is not equitably estopped from asserting

a statute of limitations defense.

Plaintiff has previously argued to this Court that USF’s actions lulled her into a false sense

of security that her complaints would be rectified short of suit. (Doc. 6, pp. 2-6) Even assuming

that Plaintiff can present evidence that USF engaged in fraudulent activity, or made representations

in bad faith that delayed Plaintiff from filing suit, she cannot demonstrate that any such actions

delayed her from filing suit for the entire duration of the statute of limitations period. In her prior

submission to this Court, Plaintiff conceded that any such actions ceased by July 30, 2013, (Doc.

6, pp. 2-6), which was over one (1) year prior to expiration of the statute of limitations. Thus, even

assuming arguendo that fraudulent activity or misconduct took place -- which it did not -- Plaintiff

has conceded that it ceased well before expiration of the statute of limitations. Thus, the claims are

barred. Delco Oil, Inc. v. Pannu, 856 So.2d at 1073; Olean Med. Condo. Ass'n, Inc. v. Azima, 144

So. 3d at 565.

C. The Breach of Fiduciary Duties Claim Lacks Merit

Plaintiff’s breach of fiduciary duties claim lacks merit. As previously set forth herein,

Plaintiff’s claim for breach of fiduciary duties is predicated upon two (2) events. First, she claims

that during February and March 2010, Dr. Steven Specter, then Associate Dean for Student Affairs,

made a poor recommendation that she attempt to successfully complete her first year of medical

school, rather than take a leave of absence from school and obtain a comprehensive

neuropsychological examination.2 Second, she claims that in October 2010, Dr. Specter provided

2
Notably, Plaintiff admitted in her deposition that she did not even believe that she needed to take
a leave of absence at that time. (Pl. Depo. p. 107, l. 23 – p. 111, l. 10)
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her with erroneous information about the results of a neuropsychological examination that she had

undergone the prior month. (Doc. 2, ¶¶ 127, 131)

Under Florida law, the elements of a cause of action for a breach of a fiduciary duty are:

(1) the existence of a fiduciary duty, (2) a breach of that duty, and (3) damages that are proximately

caused by the breach. Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002); Columbia Bank v.

Turbeville, 143 So. 3d 964, 970 (Fla. 1st DCA 2014). As set forth below, Plaintiff’s breach of

fiduciary duties claim lacks merit.

First, Plaintiff cannot even establish the existence of a fiduciary relationship, much less

the existence of a specific fiduciary duty and breach thereof. A very recent decision by the United

States District Court for the Southern District of Florida is instructive on this point. In Morrison v.

University of Miami, 2016 WL 3129490 (S.D. Fla. 2016), a Ph.D. student reported that one of her

professors had sexually harassed her. The student believed that she was making a formal sexual

harassment complaint when she reported it to the Executive Director and Associate Director of the

Office of Equality Administration (“EA”) at the University. The student requested that the EA

block all contact between her and the professor, remove the professor from any committees judging

the student’s academic progress, and protect the student from any retaliation by the professor.

Although the EA assured Plaintiff that they would follow through with her requests, it did not take

steps to protect the student from further discrimination, harassment, or retaliation. Thereafter, the

professor retaliated against the student in multiple ways. Id. at *1-4.

In Morrison, as in the case at bar, the student brought suit against the University of Miami

for breach of fiduciary duty. The University of Miami moved to dismiss the breach of fiduciary

duty claim and argued that “a college or university does not owe a fiduciary duty to its students.”

Id. at *7. The student countered that a “’special relationship’ arose from her ‘dependency’ on the

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University to handle her complaints of discrimination and retaliation.” Id. The Court agreed with

the University, dismissed the breach of fiduciary duty claim, and reasoned as follows:

The greater weight of authority appears to support the University's position that a
fiduciary duty does not simply arise because of students' status, and this Court
agrees. See, e.g., Knelman v. Middlebury Coll., No. 5:11-cv-123, 2012 WL
4481470 (D. Vt. Sept. 28, 2012); Tunne v. Hendrick, No. 5:10CV-00181, 2012 WL
3644852 (W.D. Ky. Aug. 24, 2012); Valente v. Univ of Dayton, 438 Fed. Appx.
381, 387 (6th Cir. 2011); Bass ex rel. Bass v. Miss Porter's Sch., 738 F. Supp. 2d
307, 330 (D. Conn. 2010); Vurimindi v. Fuqua Sch. Of Bus., No. 10-234, 2010 WL
3419568, at *7 (E.D. Pa. Aug. 25, 2010); Lary v. Wesleyan Univ., No.
CV0055003943, 2009 WL 865679, at *12 (Conn. Super Ct. Mar. 10, 2009);
Manning v. Temple Univ., No. 03-4012, 2004 WL 3019230, at *10 (E.D. Pa. Dec.
30, 2014); Hendricks v. Clemson Univ., 578 S.E. 2d 711, 715-16 (S.C. 2003);
Shapiro v. Butterfield, 921 S.W.2d 649, 651 (Mo. Ct. App. 1996). Plaintiff attempts
to circumvent this line of case law by arguing that a “special relationship” arose
from her “dependency” on the University to handle her complaints of
discrimination and retaliation.

Id. Other courts have drawn the same conclusion. See Gjeka v. Delaware Cty. Cmty. Coll., 2013

WL 2257727, at *10 (E.D. Pa. 2013) (“the parties have not called to our attention any Pennsylvania

case which has ruled that a graduate school or its professors owe any fiduciary duties to graduate

students”); Eng v. Hargrave, 2012 WL 116560, at *2 (N.D. Cal. 2012) (“Yet a teacher ordinarily

does not owe his student a fiduciary duty, and a student presumably owes his teacher even less.”);

Manning v. Temple Univ., 2004 WL 3019230, at *10 (E.D. Pa. 2004), aff'd, 157 F. App'x 509 (3d

Cir. 2005) (“the parties have not called to our attention any Pennsylvania case which has ruled that

a graduate school or its professors owe any fiduciary duties to graduate students”); Knelman v.

Middlebury Coll., 570 F. App'x 66, 68–69 (2d Cir. 2014) (“While schools, colleges, and educators

assume the responsibility of educating their students, the law does not recognize the existence of

a special relationship for the purposes of a breach of fiduciary duty claim.”); Robinson v. Nevada

Sys. of Higher Educ., 2015 WL 8780244, at *3 (D. Nev. 2015) (“Robinson has not provided, and

the Court's own research has been unable to locate, a single case holding that a college professor

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or university has a fiduciary duty to their students in the ordinary academic context. To the

contrary, several courts who have addressed this issue reached the same conclusion as the

Magistrate Judge—a fiduciary relationship does not exist in this context.”).

Second, Plaintiff was not reliant upon Dr. Specter with respect to whether she should or

could take a leave of absence during her first year and therefore was not reliant upon Dr. Specter

in that regard. On this point, it is important bear in mind that Plaintiff was not a child in grade

school, but an adult in medical school. She admitted in deposition that the MCOM student

handbook was readily available to her when she spoke with Dr. Specter about taking a leave of

absence. (Pl. Depo. p. 102, l. 22 – p. 107, l. 1) As pointed out in Plaintiff’s own Complaint, the

MCOM student handbook addresses leaves of absence. (Doc. 2, ¶ 28, Doc. 2, Ex. B) Thus, Plaintiff

should have been aware of her options and was not dependent upon Dr. Specter for that purpose.

Third, Plaintiff was not reliant upon Dr. Specter with respect to the results of her

neuropsychological evaluation and therefore was not reliant upon Dr. Specter in that regard.

Indeed, on September 2, 2010, the individual who performed the neuropsychological testing on

Plaintiff, Dr. Schoenberg, went over the results of that testing with her. (Doc. 2, ¶ 37) At that time,

Dr. Schoenberg informed Plaintiff that he did not find anything. (Pl. Depo. p. 217, l. 22 – p. 220,

l. 3) On or around September 2, 2010, Plaintiff asked Dr. Schoenberg for a copy of his report, but

it was not yet ready. (Id.) Plaintiff did not bother to contact Dr. Schoenberg after that to ask for a

copy of the report. (Id.)

D. The Negligent Misrepresentation Claim Is Barred By Sovereign Immunity

Plaintiff’s negligent misrepresentation claim is barred by sovereign immunity. Indeed,

Florida courts have repeatedly held that “sovereign immunity bars tort liability on the part of the

state or its agencies for state agents who negligently misinform members of the public.” Storm v.

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Town of Ponce Inlet, 866 So. 2d 713, 715 (Fla. 5th DCA 2004); see also Friedberg v. Town of

Longboat Key, 504 So.2d 52 (Fla. 2d DCA 1987); Hillsborough County v. Morris, 730 So.2d 367

(Fla. 2d DCA 1999); City of Tarpon Springs v. Garrigan, 510 So.2d 1198 (Fla. 2d DCA 1987).

Under Florida law, “actions for negligent misrepresentation sound in fraud rather than

negligence.” Postel Indus., Inc. v. Abrams Group Constr., LLC, 2012 WL 419660 at *2 (M.D. Fla.

2012) (citing Morgan v. W.R. Grace & Co., 779 So. 2d 503, 506 (Fla. 2d DCA 2000); Burton v.

Linotype, 556 So. 2d 1126, 1129 (Fla. 3d DCA 1989) (“negligent misrepresentation is considered

tantamount to actual fraud.”) (quoting Ostreyko v. B.C. Morton Org. Co., 310 So. 2d 316, 318

(Fla. 3d DCA 1975) (same). See also Lamm v. State Street Bank & Trust, 2014 WL 1410172 at

*9 (11th Cir. 2014) (“negligent misrepresentation sounds in fraud under Florida law.”); and McGee

v. J.P. Morgan Chase Bank, NA, 520 Fed. Appx. 829, 831 (11th Cir. 2013) (“negligent

misrepresentation sounds in fraud . . . .”). Moreover, in Florida, courts have ruled that “bad faith

must always be considered a necessary element of fraud.” Parker v. State of Fla. Bd. of Regents,

724 So. 2d 163, 168 (Fla. 1st DCA 1998) (citing First Interstate Dev. Corp. v. Ablanedo, 511 So.

2d 536, 539 (Fla. 1987). Because Florida courts uniformly hold that negligent misrepresentation

claims sound in fraud rather than in negligence, and since Florida courts also hold that bad faith is

a necessary component of any fraud claim, a fortiori, Florida’s limited statutory waiver of

sovereign immunity does not extend to Plaintiff’s negligent misrepresentation claim. See Section

768.28(9), Florida Statutes (“The state or its subdivisions shall not be liable in tort for acts or

omissions of an officer, employee, or agent committed while acting outside the course and scope

of her or his employment or committed in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard for human rights, safety, or property.”).

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E. The Negligent Misrepresentation Claim Lacks Merit

The negligent misrepresentation claim lacks merit. In order to be actionable, a suit for

negligent misrepresentation must contain the following elements: (1) misrepresentation of a

material fact; (2) the representor must either know of the misrepresentation, must make the

representation without knowledge as to its truth or falsity, or must make the representation under

circumstances in which he ought to have known of its falsity; (3) the representor must intend that

the representation induce another to act on it; (4) injury must result to the party acting in justifiable

reliance on the misrepresentation. Atl. Nat. Bank of Florida v. Vest, 480 So. 2d 1328, 1331–32

(Fla. 1st DCA 1985).

As previously set forth herein, Plaintiff’s claim for negligent misrepresentation is based

upon the allegation that in October 2010, Dr. Specter provided her with erroneous information

about the results of a neuropsychological examination that she had undergone the prior month.

(Doc. 2, ¶ 142) However, Plaintiff cannot claim that she justifiably relied upon Dr. Specter

concerning this matter. To the contrary, on September 2, 2010, the individual who performed the

neuropsychological testing on Plaintiff went over the results of that testing with her. (Pl. Depo. p.

217, l. 22 – p. 220, l. 3)

F. The Breach of Contract and Unjust Enrichment Claims Are Barred By Sovereign

Immunity

The breach of contract and unjust enrichment claims are barred by sovereign immunity. It

is undisputed that USF is an agency of the State of Florida. See Dismuke v. University of South

Florida Board of Trustees, 2006 WL 166547 at *3 (M.D. Fla. 2006) (“In Florida, state universities

are agencies of the state and courts have specifically stated that public universities are arms of the

state. See Fla. Stat. § 1001.705(1)(a)(4) (2002)”). As a state agency, USF is entitled to sovereign

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immunity from suit for breach of contract claims unless the contract that is allegedly being

breached is an express written contract. See e.g., Pan Am Tobacco v. Department of Corrections,

471 So. 2d 4, 5-6 (Fla. 1985) (waiver of the doctrine of sovereign immunity for breach of contract

claims only applies to express, written contracts); County of Brevard v. Miorelli Engineering, Inc.,

703 So. 2d 1049, 1050 (Fla. 1997) (sovereign immunity not waived for claims of implied contract);

and City of Orlando v. West Orange Country Club, Inc., 9 So. 3d 1268, 1272-1273 (Fla. 5th DCA

2009).

USF acknowledges that there are cases in Florida holding that, in a private university

setting, rules and regulations contained in a university’s student handbook can give rise to an

implied contract claim. See e.g., McCawley v. Universidad Carlos Albizu, 461 F. Supp. 2d 1251,

1258 (S.D. Fla. 2006) (“Pursuant to Florida law, there is an implied contract between a student

and a private university that if the student fully complies with the rules and regulations of the

university, then the university will confer to him a degree.”); Sharick v. Southeastern University

of the Health Sciences, Inc., 780 So. 2d 136, 139 Fla. 3d DCA 2000) (“When a student is duly

admitted by a private university . . . there is an implied contract between the student and the

university that, if [the student complies with the terms prescribed by the university, [the student]

will obtain a degree.”) (quotes and brackets in the original); Jallali v. Nova Southeastern

University, Inc., 992 So. 2d 338, 342 (Fla. 4th DCA 2008); University of Miami v. Militana, 184

So. 2d 701, 704 (Fla. 3d DCA 1966); and John B. Stetson University v. Hunt, 102 So. 637, 640

(Fla. 1924). However, USF is entitled to sovereign immunity from a breach of contract claim that

is predicated upon an implied contract. See Miorelli Engineering, Inc., 703 So. 2d at 1050.

Although USF does not have sovereign immunity from a breach of contract claim based

upon an express, written contract, items such as student policy manuals do not constitute an

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express, written contract between a student and a university. See Carr v. Bd. of Regents of Univ.

Sys. of Ga., 249 F. App’x 146, 150–51 (11th Cir. 2007) (affirming summary judgment in favor of

university on student’s breach of contract claim based on alleged breach of student policies);

Williams v. Florida State Univ., 2014 WL 340562 (N.D. Fla. 2014) (dismissing student’s breach

of contract claim); Abbas v. Woleben, 2013 WL 5295672, *4 (E.D. Va. 2013) (finding that

university handbooks and catalogs do not form a contract when the terms are not binding on the

university); Brown v. Rector & Visitors of the Univ. of Virginia, 2008 WL 1943956, *6 (W.D.

Va. 2008) (holding that a student handbook did not constitute a binding contract based on its

disclaimers).

Plaintiff has not, and cannot, point to an express, written contract upon which her claim for

breach of contract is based. Instead, she points to the Student Handbook. (Doc. 2, Ex. B) However,

page eight of the Student Handbook specifically states:

This handbook is not a contract between the University and you. Rather[,] it is
intended to provide up-to-date information which may be helpful to you. (emphasis
in original)

Thus, the handbook by its very terms disavows the notion that it is an express contract. While a

student handbook may give rise to an implied contract in the context of a private university, it does

not create an express contract and it cannot operate to waive USF’s sovereign immunity from

Plaintiff’s claim for breach of contract.

Absent an express, written contract, USF is likewise entitled to sovereign immunity from

Plaintiff’s unjust enrichment claim. See City of Fort Lauderdale v. Israel, 178 So. 3d 444, 448 (Fla.

4th DCA 2015); Brevard Cty. v. Morehead, 181 So. 3d 1229, 1232 (Fla. 5th DCA 2015); Calderone

v. Scott, 2015 WL 1800315, *2 (M.D. Fla. 2015); Brandt v. Pub. Health Trust of Miami-Dade

Cnty., 2010 WL 4062798, *1 (S.D. Fla. 2010).

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G. The Breach of Contract and Unjust Enrichment Claims Lack Merit

The breach of contract and unjust enrichment claims lack merit. As set forth above,

Plaintiff’s breach of contract and unjust enrichment claims are based solely upon the terms of the

USF MCOM’s student handbook. (Doc. 2, ¶¶ 160-163) Even assuming arguendo that USF does

not have sovereign immunity from these claims -- which it does -- they are nonetheless without

merit. The sole provision relied upon by Plaintiff in support of these claims is found in the student

handbook and states in pertinent part as follows:

A student may be granted a refund of 100% of tuition paid if he or she withdraws


due to circumstances determined by the college to be exceptional and beyond the
control of the student. (emphasis added)

(Doc. 2, ¶ 163 and Doc. 2, Ex. B, p. 55) First, it is clear from the foregoing provision that

reimbursement is not mandatory but instead “may” be granted. Second, it is clear that USF has

discretion to determine whether it deems that the circumstances giving rise to a student’s

withdrawal from school are exceptional and beyond the control of the student. Third, the foregoing

provision only addresses instances in which a student has withdrawn from school. Plaintiff was

dismissed from USF’s MCOM in January 2012 and March 2013; she did not withdraw. (Pl. Depo.

p. 178, l. 12 –p. 179, l. 22; p. 197, l. 17 – p. 198, l. 21)

H. The Section 504 Disability Discrimination Claim Lacks Merit

The Section 504 disability discrimination claim lacks merit. First, Plaintiff is not an

“otherwise qualified individual” under the Rehabilitation Act. Less than one (1) year ago, the

Eleventh Circuit Court of Appeals had occasion to address a Section 504 discrimination claim

brought by a medical student who had been dismissed from the osteopathic medicine program at

Nova University. See J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921 (11th Cir. 2016). In that

case, the student claimed that the medical school violated Section 504 and discriminated against

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him on the basis of his disability -- major depressive disorder -- when it dismissed him from the

program. The Eleventh Circuit set forth the applicable law as follows:

The Rehabilitation Act provides the following protection for persons facing a
disability: No otherwise qualified individual with a disability in the United States
... shall, solely by reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance. . . Discrimination claims under
the RA are governed by the same standards used in ADA cases. . . In order to
establish a prima facie case of discrimination under the RA or ADA, the plaintiff
must demonstrate that he (1) is disabled, (2) is a qualified individual, and (3) was
subjected to unlawful discrimination because of his disability. . . An “otherwise
qualified” person is one who is able to meet all of a program's requirements in spite
of his handicap. . . In the context of postsecondary education, an “otherwise
qualified” individual must be able to meet the academic and technical standards
requisite to admission or participation in the education program or activity, in spite
of his handicap. . . In certain circumstances, an educational institution's refusal to
accommodate the needs of a disabled person amounts to discrimination against that
person because of his disability. . . However, “[the RA] imposes no requirement
upon an educational institution to lower or to effect substantial modifications of
standards to accommodate a handicapped person.” . . . Where the purpose of an
educational program is to train persons to serve their profession in all customary
ways, an institution's refusal to make “major adjustments” to its program in order
to accommodate the disabled does not amount to disability-related discrimination.

Id. at 926–27. The Eleventh Circuit concluded that the student’s claims failed, because he did not

allege facts demonstrating that he was dismissed from the program “solely” because of his

disability. More importantly, the Eleventh Circuit also concluded that the student was not an

“otherwise qualified individual” under the Rehabilitation Act. The Court reasoned that the student

was unable to complete a single full semester of medical school without suffering a relapse of his

major depressive disorder during the semester and had repeatedly relapsed and failed to meet the

medical school’s academic requirements. Id.

In the case at bar, as in J.A.M., Plaintiff is not an “otherwise qualified individual” for

purposes of Section 504. She failed the first year of the Doctor of Medicine Program despite having

taken Adderall for her ADHD during that year. She also failed the second year of the Program.

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Upon repeating the second year of the Program, she continued to have academic difficulties even

though she was provided accommodations in the form of additional time to complete

examinations, an opportunity to take examinations in a quiet room by herself, and extensions of

time to take examinations, including even a three (3) month extensions of time. In short, it took

her four (4) years to complete two (2) years of the Program, and there did not appear to be any

reason to believe that her performance would improve over time.

Second, USF’s ultimate decision to terminate Plaintiff from the Program was for

legitimate, nondiscriminatory reasons: poor academic performance, as evidenced by the fact that

she failed -- not just two (2) courses, but two (2) entire years. USF’s determination that Plaintiff

did not satisfy its academic standards for the Program is entitled to deference. Wood v. President

& Trustees of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1222–23 (11th Cir. 1992).

Moreover, USF was under no obligation to lower its academic standards in order to accommodate

Plaintiff. Id.; see also Southeastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct.

2361, 2370 (1979) (educational institutions need not lower or substantially modify their standards

to accommodate a handicapped person). Plaintiff cannot demonstrate that her academic problems

were a pretext to mask unlawful discrimination, and she certainly cannot demonstrate that

discriminatory animus was the sole reason for her termination from the Program.

Third, Plaintiff cannot demonstrate that she was subject to disparate treatment on the basis

of her disability. To the contrary, Plaintiff admitted in her deposition that during the 2009-2010

and 2011-2012 academic years, no one held her to a different standard than other students. (Pl.

Depo. p. 160, l. 5 – p. 161, l. 7) She also admitted that, when she repeated her first and second

years in the program, she was held to the same standard as other repeating students. (Pl. Depo. p.

161, l. 8 – p. 163, l. 9)

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I. The Section 504 Retaliation Claim Lacks Merit

The Section 504 retaliation claim is meritless. To establish a prima facie case of retaliation

under the Rehabilitation Act, a plaintiff must show: “(1) he was engaged in statutorily protected

expression, (2) he suffered a materially adverse action, and (3) there was some causal relationship

between the two events.” Simpson v. State of Ala. Dept. of Human Res., 501 F. App'x. 951, 954

(11th Cir.2012); Kendall v. Shinseki, 2014 WL 6469433, at *4 (M.D. Fla. Nov. 16, 2014).

According to the Eleventh Circuit Court of Appeals:

The Rehabilitation Act incorporates the anti-retaliation provision from § 12203(a)


of the Americans with Disabilities Act (“ADA”) . . . Under the ADA's anti-
retaliation provision, “[n]o person shall discriminate against an individual because
such individual has opposed any act or practice made unlawful by this chapter.” . .
. This anti-retaliation provision is similar to Title VII's prohibition on retaliation. .
. . Accordingly, we assess retaliation claims pursuant to the Rehabilitation Act
under the framework we use in assessing Title VII retaliation claims.

Burgos-Stefanelli v. Sec'y, U.S. Dep't of Homeland Sec., 410 F. App'x 243, 245 (11th Cir. 2011)

(internal citations omitted); see also Shannon v. Postmaster Gen. of U.S. Postal Serv., 335 F. App'x

21, 26 (11th Cir. 2009).

In the case at bar, Plaintiff’s claim for retaliation fails because she did not engage in

protected activity under the Rehabilitation Act prior to her dismissal from the Doctor of Medicine

Program. Plaintiff admitted in her deposition that she did not make any report or otherwise make

any internal complaint of discrimination while she was a student at USF’s MCOM. Although

Plaintiff realized that there was a complaint procedure she could follow involving USF’s Office of

Equal Opportunity, she did not do so because at the time she did not believe that she was being

discriminated against. (Pl. Depo. p, 215, l. 18 – p. 217, l. 3) Plaintiff admitted that she never made

any complaints of discrimination while she was a student at USF’s MCOM, whether to USF or to

any other governmental agency. Although she later made complaints to the United States

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Department of Education, that was after she had been dismissed from the Doctor of Medicine

Program. (Id. at p. 204, l. 23 – p. 205, l. 12)

Plaintiff also cannot establish that her dismissal from the Doctor of Medicine Program was

motivated by, or resulted from, her complaint to the United States Department of Education. To

the contrary, as set forth above, Plaintiff admitted that she complained to the United States

Department of Education after she had been dismissed from the Doctor of Medicine Program.

Plaintiff’s claim of unlawful retaliation is leveled solely against Dr. Frazier Stevenson, who

was USF’s Associate Dean of Undergraduate Medical Education. In her deposition, Plaintiff

testified that on March 8, 2013, she informed Dr. Stevenson that she did not want to take the

Comprehensive Basic Science Exam (“CBSE”) without the accommodations that had been

approved by USF’s MCOM. Because she was dismissed from the Doctor of Medicine Program

several days later, she surmises that her dismissal was in retaliation for asking for accommodations

while taking the CBSE. (Pl. Depo. at p. 205, l. 13 – p. 208, l. 25) Plaintiff testified that she is not

aware of anyone else having retaliated against her. (Pl. Depo. at p. 213, l. 1 – p. 215, l. 17)

Plaintiff cannot demonstrate that Dr. Stevenson orchestrated her dismissal from the Doctor

of Medicine Program. To the contrary, as Plaintiff acknowledged in her deposition, the decision

to dismiss her from the Program was made by the Academic Performance Review Committee

(“APRC”). (Pl. Depo. at p. 197, l. 17 – p. 198, l. 21; p. 211, l. 21 – p. 212, l. 11) Plaintiff further

admitted that she does not know who served on the APRC and made the decision to dismiss her

from the Program. (Pl. Depo. at p. 211, l. 12-20) In fact, Dr. Stevenson did not serve on the APRC

during the 2012-2013 academic year, so he did not participate in its decision to dismiss Plaintiff

from the Program. See USF’s Response to Plaintiff’s Interrogatory No. 12. Moreover, there is no

evidence to suggest that he forced or manipulated the APRC to decide to dismiss Plaintiff. As

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previously set forth herein, Plaintiff’s dismissal was for a legitimate, nondiscriminatory and

nonretaliatory reason: her poor academic record in the Program.

J. Plaintiff’s Section 504 Discrimination and Retaliation Claims Are Partially Barred

Plaintiff’s Section 504 discrimination and retaliation claims are time barred by the statute

of limitations insofar as those claims arose prior to January 22, 2012, which is four (4) years before

Plaintiff filed her Complaint. In Florida, the statute of limitations for claims under Section 504 of

the Rehabilitation Act is four (4) years. Ealy v. GEO Grp., Inc., 2016 WL 3553141, at *1 (11th

Cir. 2016). Thus, applying the four (4) year statute of limitations to Plaintiff’s Section 504

discrimination and retaliation claims, those claims are time barred insofar as they rest upon any

discriminatory or retaliatory act that purportedly took place prior to January 22, 2012.

IV. Conclusion

For the foregoing reasons, USF respectfully requests that this Court grant its Motion for

Summary Judgment with respect to all of Plaintiff’s claims herein.

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DATED this 4th day of February, 2017.
Respectfully submitted,

CONSTANGY, BROOKS,
SMITH & PROPHETE, LLP
200 W. Forsyth St.
Ste. 1700
Jacksonville, Florida 32202
Telephone: (904) 356-8900
Facsimile: (904) 356-8200

By: /s/ J. Ray Poole


John F. Dickinson
Florida Bar No.: 198651
jdickinson@constangy.com
J. Ray Poole
Florida Bar No.: 983470
rpoole@constangy.com

Attorneys for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 4th day of February, 2017 the undersigned electronically

filed the foregoing which will be electronically served via the CM/ECF to all counsel of record

herein.

/s/ J. Ray Poole


Attorney

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No.: 8:16-cv-00637-JSM-TGW

UNIVERSITY OF SOUTH FLORIDA


BOARD OF TRUSTEES,

Defendant.

___________________________________/

DEFENDANT’S NOTICE OF FILING DEPOSITION TRANSCRIPTS


IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant, the University of South Florida Board of Trustees (hereinafter

referred to as “Defendant” or “USF”), by and through its undersigned attorneys, pursuant to Rule

56 of the Federal Rules of Civil Procedure, and files the following deposition transcripts in support

of its Motion for Summary Judgment:

Exhibit “A” - Plaintiff’s Deposition Transcript and Exhibits Thereto

Exhibit “B” - Deposition Transcript of Dr. Deborah Roth and Exhibits Thereto

Exhibit “C” - Deposition Transcript of Dr, Ambuj Kumar and Exhibits Thereto

Exhibit “D” - Deposition Transcript of Dr. Saundra Stock and Exhibits Thereto
Case 8:16-cv-00637-JSM-TGW Document 23 Filed 02/04/17 Page 2 of 2 PageID 524

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DATED this 4th day of February, 2017.
Respectfully submitted,

CONSTANGY, BROOKS,
SMITH & PROPHETE, LLP
200 W. Forsyth St.
Ste. 1700
Jacksonville, Florida 32202
Telephone: (904) 356-8900
Facsimile: (904) 356-8200

By: /s/ J. Ray Poole


John F. Dickinson
Florida Bar No.: 198651
jdickinson@constangy.com
J. Ray Poole
Florida Bar No.: 983470
rpoole@constangy.com

Attorneys for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 4th day of February, 2017 the undersigned electronically

filed the foregoing which will be electronically served via the CM/ECF to all counsel of record

herein.

/s/ J. Ray Poole


Attorney

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U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CERTIFICATE OF SERVICE

Nausheen Zainulabeddin
vs. USF BOT Appeal No.
17-12134, 17-11888, 17-12376

FRAP 25(b) through (d) (see reverse) requires that at or before the time of filing a paper,
a party must serve a copy on the other parties to the appeal or review. In addition, the
person who made service must certify that the other parties have been served, indicating
the date and manner of service, the names of the persons served, and their addresses.
You may use this form to fulfill this requirement. Please type or print legibly.

I hereby certify that on (date) August 30, 2017 ,


APPELLANT APPENDICES OF VOLUMES I TO XI
a true and correct copy of the foregoing (title of filing) ,

with first class postage prepaid, has been (check one)

G deposited in the U.S. Mail G deposited in the prison’s


internal mailing system

and properly addressed to the persons whose names and addresses are listed below:

filed with the clerk of the USCA 11th circuit


and served a paper copy to attorneys on record
Ms. Lori Mans and Mr. John Dickinson
200 West Forsyth Street
Suite 1700 Jacksonville, FL 32202-4317

Your Name (please print) Your Signature

Please complete and attach this form to the original document and to any copies you are
filing with the court, and to all copies you are serving on other parties to the appeal.
ix